THE    ROAD 


AND 


THE     ROADSIDE. 


BY 
BURTON  WILLIS  POTTER. 


SECOND   EDITION. 


BOSTON: 

LITTLE,  BROWN,  AXD  COMPANY. 

1887. 


Copyright,  1886, 1887, 
Br  BURTON  WILLIS  POTTER. 


GIFT 


..... 


UNTVEKSTTT  PRESS  : 
JOHN  "WILSON  AND  SON,  CAMBRIDGE. 


TO 


THE  HONORABLE  JOHN  E.  RUSSELL, 

SECRETARY  OF 
THE  MASSACHTSETTS  BOAKD  OF  AGRICULTURE, 

5T?jese  Pages  are  EespectfuIIg  Inwrftrt, 


AS  A  TOKEN   OF   MY   LOYE   AXD   ESTEEM    FOB   HIM  AS  A  TKUE   FRIEXD, 

A  CLASSICAL  SCHOLAR,  AND  AN   ELOQUENT   ORATOR, 

WHOSE    SPEECHES   AND  WRITINGS   HAVE   AIDED   POWERFULLY 

IN    BRINGING   ABOUT   A   REVIVAL   OF   AGRICULTURE, 

AND    IN    CREATING    AMONG    THE     PEOPLE 

A    LOVE    OF    AGRICULTURE    AND 

RURAL    LIFE. 


M852188 


PREFACE  TO  SECOND   EDITION. 


SINCE  the  publication  of  the  first  edition  of  this 
book,  it  has  been  suggested  to  me  many  times,  pri- 
vately and  through  the  public  press,  that  in  case  a 
new  edition  should  be  called  for  there  ought  to  be  a 
chapter  upon  Sidewalks,  and  another  upon  Cycle  law. 
Feeling  the  force  of  these  suggestions,  I  have  prepared 
two  chapters  upon  these  subjects,  which  are  contained 
in  this  issue.  And  having  occasion  to  use  many  books, 
I  have  come  to  the  opinion  that  every  book  which  is 
worth  publication  is  worth  an  index;  and  pursuant 
to  this  opinion  I  have  prepared  an  Index  for  this 
edition,  which  I  trust  will  add  something  to  the  con- 
venience of  those  who  may  have  occasion  to  consult 
its  pages. 

B.  W.  P. 
"WORCESTER,  MASS., 

June,  1887. 


PREFACE. 


THE  chapters  of  this  book  relating  to  the  laws  of 
public  and  private  ways  were  written  and  read  as 
a  lecture  at  the  Country  Meeting  of  the  Massachusetts 
Board  of  Agriculture,  in  December,  1885,  at  Framing- 
ham,  and  have  since  been  published  in  the  "  Report  on 
the  Agriculture  of  Massachusetts  for  the  Year  1885." 

The  laws  as  herein  stated  are,  as  I  believe,  the 
present  laws  of  Massachusetts  relative  to  public  and 
private  ways,  and  therefore  they  may  not  all  be  appli- 
cable to  the  ways  in  other  States  ;  but  inasmuch  as  the 
common  law  is  the  basis  of  the  road  law  in  all  the 
States,  it  will  be  found  that  the  general  principles 
herein  laid  down  are  as  applicable  in  one  State  as  in 
another. 

Believing  that  good  roads  and  the  love  of  rural  life 
are  essential  to  the  true  happiness  and  lasting  prosperity 
of  any  people,  these  pages  have  been  written  with  the 
sincere  desire  to  do  something  to  improve  our  roads  and 
to  encourage  country  life ;  and  they  are  now  given  to 
the  public  with  the  hope  that  they  will  exert  some  little 
influence  in  promoting  these  objects. 

B.  W.  P. 

"\VOECESTER,  MASS., 

May,  1886. 


CONTENTS. 


CHAPTER  I. 

HISTORY,  IMPORTANCE,  AND  SIGNIFICANCE  OF  ROADS. 

PAGE 

Roads  the  symbols  of  progress  and  civilization.  —  Macaulay  and 
Bushnell  on  the  value  of  public  highways.  —  The  first  sponsors 
of  art,  science,  and  government  were  the  builders  of  roads.  — 
The  ancient  highway  between  Babylon  and  Memphis.  —  The 
Carthaginians  as  road-makers. —  Roman  roads  :  their  construc- 
tion, extent,  and  durability  ;  their  instrumentality  in  giving 
Rome  her  pre-eminence  in  the  ancient  world  ;  their  mode  of 
construction  described.  —  Ponderous  roads  in  China.  —  Magni- 
ficent highways  in  the  ancient  empires  of  Mexico  and  Peru.  — 
Prescott's  description  of  the  great  roads  in  Peru.  —  Bad  condi- 
tion of  the  English  roads  in  the  sixteenth  century.  —  AVith 
the  revival  of  modern  civilization  the  improvement  of  the  pub- 
lic highways  has  engaged  the  thought  of  public  and  scientific 
men.  —  Advantages  of  good  roads  generally  and  especially  as 
the  means  of  a  proper  distribution  of  population  ....  1-11 


CHAPTER  H. 

LOCATION. 

Best  possible  location  desirable.  —  Permanent  nature  of  roads.  — 
Many  of  the  ancient  roads  are  still  travelled  by  the  people  of 
to-day.  —  The  law  of  the  survival  of  the  fittest  applicable  to 


Vlll  CONTENTS. 

PAGE 


the  location  of  roads.  —  The  makers  of  a  good  road  often  build 
better  than  they  know.  —  Roads  may  be  located  in  three  dif- 
ferent ways.  —  The  old  Romans  and  the  modern  Latin  nations 
locate  in  straight  lines.  — The  English-speaking  people  usually 
locate  their  roads  in  curved  lines.  —  Curved  roads  have  many 
advantages  over  straight  ones,  as  good  grades  are  more  desir- 
able than  straight  roads 12-16 


CHAPTER  III. 

CONSTRUCTION. 

Importance  of  drainage.  —  Good  roads  impossible  without  proper 
drainage.  —  Proper  width  of  roads  for  travel.  —  They  should 
be  wide  enough  to  admit  of  foot-paths  at  their  sides.  —  Every 
road  should  be  erownecLsufficiently  to  run  off  the  surface  water, 
but  not  enough  to  make  the  road-bed  too  unlevel.  — The  golden 
mean  is  to  be  sought.  —  A  macadamized  road  the  cheapest  and 
best  for  our  climate  and  soil.  —  Proper  foundation  and  depth 
of  stone  covering  for  such  a  road.  — The  Telford  road  some- 
times the  best  for  clayey  soil.  —  Its  construction.  —  They  will 
be  the  future  roads  of  our  country.  —  Earth-roads  now  generally 
prevail.  —  How  to  make  them,  and  how  to  keep  them  up  .  17-21 


CHAPTER  IV. 

REPAIRS. 

Economy  and  public  convenience  require  roads  to  be  kept  up  the 
year  round.  —  Advantages  of  a  road  always  in  good  condi- 
tion. —  Evils  of  the  present  system  of  annual  or  semi-annual 
repairs.  — The  present  system  described.  — Advantages  of  the 
continual-repair  system  illustrated  by  the  great  turnpike  from 
Virginia  City  to  Sacramento,  by  Baden,  Germany,  France, 
Switzerland,  Great  Britain,  and  towns  in  the  vicinity  of  our 
great  cities.  — This  system  alone  will  prevail  when  the  princi- 
ples of  road-making  become  better  known 22-27 


CONTENTS. 

CHAPTER  V. 

LAWS  RELATING  TO  THE  LAYING  OUT  OF  WAYS. 

PAGE 

For  what  purposes  ways  may  be  laid  out,  and  how  they  may  be 
established. -May  be  laid  out  by  town  or  county  authori- 
ties. —  Distinction  between  town  ways  and  public  highways.  — 
When  the  public  officials  refuse  to  lay  out  ways,  parties  in- 
terested may  appeal. —How  damages  are  avoided  and  costs 

.,  ...     28-31 

paid 

CHAPTER  VI. 

LAW  AS  TO  REPAIRS. 

How  and  by  whom  ways  are  to  be  kept  in  repair.  -The  duties 
and  rights  of  the  public  authorities  in  making  repairs.  —The 
boundaries  of  highways.  -  The  rights  of  travellers  as  to  the 
removal  of  obstructions  in  the  road.  —  Unauthorized  persons 
have  no  right  to  repair  ways.  —  Highways  to  be  protected 
by  proper  railings.— How  wide  roads  should  be  ....  32-35 

CHAPTER  VII. 

GUIDE-POSTS,  DRINKING-TROUGHS,  AND  FOUNTAINS. 

Guide-posts  to  be  erected  and  maintained  at  suitable  places.  - 
Penalties  attached  to  neglect  or  refusal  to  erect  and  maintain 
them.  —  Town  officers  may  establish  and  maintain  drinking- 
troughs,  wells,  and  fountains.  —  Their  duty  in  this  respect  36-38 

CHAPTER  VITI. 

SHADE  TREES,   PARKS,   AND   COMMONS. 

Towns  and  cities  have  authority  to  beautify  the  roadsides  and 
public  squares.  —  May  plant  trees  and  encourage  their  plant- 


CONTENTS. 

PAGB 

ing  by  adjoining  owners  and  improvement  societies.  —  The 
rights  of  improvement  societies  and  the  penalties  for  interfer- 
ing with  their  work.  —  Shade  trees  and  other  ornamental  fix- 
tures not  to  be  injured  or  destroyed 39-41 


CHAPTER  IX. 

PUBLIC  USE   OF  HIGHWAYS. 

How  roads  are  to  be  used  by  the  public  and  adjoining  owners.  — 
Due  care  to  be  used  by  travellers.  —  Masters  responsible  for 
their  servants'  acts.  —  No  responsibility  for  inevitable  acci- 
dents. —  "What  is  a  proper  rate  of  speed 42-44 


CHAPTER  X. 

"THE  LAW  OF  THE  ROAD." 

Rules  for  the  meeting,  passing,  and  conduct  of  teams  on  the  road. 
—  These  rules  not  inflexible.  —  When  they  may  be  deviated 
from.  —  Each  traveller  has  a  right  to  a  fair  share  of  the  road.  — 
The  rights  of  light  and  heavily  loaded  vehicles.  —  When  a 
traveller  with  team  may  use  track  of  street  railway  .  .  .  45-49 


CHAPTER  XI. 

EQUESTRIANS  AND   PEDESTRIANS. 

Equestrians  must  give  way  for  vehicles.  —  "  The  law  of  the  road  " 
does  not  apply  to  them  by  the  terms  of  the  statutes,  but  they 
should  observe  it  as  far  as  practicable.  —  Pedestrians  have  a 
right  to  walk  on  carriage-way.  —  In  cities  they  should  walk  on 
the  sidewalks.  —  They  must  use  due  care.  —  Their  rights  on 
cross-walks.  — They  are  not  subject  to  "  the  law  of  the  road." 
—  They  may  walk  out  on  Sunday  for  their  health ....  50-53 


CONTEXTS.  XI 

CHAPTER  XII. 

OMNIBUSES,   STAGES,   AND   HORSE-CARS. 

PAGE 

Carriers  of  passengers  for  hire  are  bound  to  use  due  diligence  in 
providing  suitable  coaches,  harnesses,  horses,  and  coachmen.  — 
They  must  not  leave  their  horses  unhitched.  —  If  they  receive 
passengers  when  their  coaches  are  already  full,  they  must  use 
increased  care.  —  Passengers  must  pay  fare  in  advance,  if 
demanded  ...  ,  .  ,  54-56 


CHAPTER  XIII. 

PURPOSES  FOR  WHICH   HIGHWAYS  MAY  BE  USED. 

Public  ways  are  mainly  for  the  use  of  travellers,  but  they  may  be 
used  for  other  public  purposes,  —  gas,  water-pipes,  sewers, 
street  railways,  telephone  and  telegraph  lines,  etc.  —  Every 
one  may  use  the  highway  to  his  own  advantage,  but  with  re- 
gard to  the  like  rights  of  others.  —  What  animals  and  vehicles 
are  allowed  upon  the  road.  —  Towns  and  cities  may  regulate 
by  by-laws  the  use  and  management  of  the  public  ways  .  .  57-61 


CHAPTER  XIV. 

USE   OF  HIGHWAYS  BY  ADJOINING   OWNERS. 

They  own  the  fee  in  the  land,  and  are  entitled  to  all  the  profits  of 
the  freehold,  —  the  grass,  the  trees,  fruit,  etc.  —  If  the  land  in 
the  way  is  subjected  to  any  new  servitude,  like  an  elevated 
railroad  or  telegraph  or  telephone  lines,  they  are  entitled  to 
damages.  — They  can  load  and  unload  vehicles  in  connection 
with  their  business  on  their  premises,  but  it  must  be  done  in 
such  a  manner  as  not  to  incommode  the  travelling  public.  — 
They  must  not  fill  up  the  roadside  with  logs,  wood,  or  rubbish 
of  any  kind 62-69 


Xll  CONTENTS. 

CHAPTER  XV. 

PRIVATE  WAYS. 

PAGE 

Private  ways  may  be  established  and  discontinued  in  the  same 
manner  as  public  ways.  —  The  owner  of  such  way  must  keep  it 
in  repair.  —  The  owner  of  the  soil  may  use  it  for  agricultural 
purposes,  and  keep  up  bars  and  gates.  —  "  The  law  of  the  road  " 
applies  to  private  ways 70-72 

CHAPTER  XVI. 

DON'T. 

Don't  drink  intoxicating  liquors  when  travelling.  —  Don't  forget 
to  look  out  for  the  engine  while  the  bell  rings.  — Don't  take 
animals  affected  by  contagious  diseases  on  the  public  way.  — 
Don't  go  upon  the  road  if  you  are  afflicted  with  a  contagious  or 
infectious  disease.  —  Don't  go  out  sleigh-riding  without  bells 
attached  to  your  harness.  —  Don't  try  to  drive  a  horse  on  the 
road  unless  you  know  how  to  manage  him.  — Don't  ride  with 
a  careless  driver.  —  Don't  use  a  vicious  horse,  or  let  him  to  be 
used  on  the  road.  —  Don't  let  your  horses  get  beyond  your 
control.  — Don't  encroach  upon  or  abuse  the  highway.  —  Don't 
ride  on  the  outside  platform  of  a  passenger  coach.  —  Don't 
jump  off  a  coach  when  it  is  in  motion.  —  Don't  wilfully  break 
down,  injure,  remove,  or  destroy  a  milestone,  mile-board,  or 
guide-post.  —  Don't  go  out  of  the  road-way  upon  adjoining 
land.  —  Don't  suppose  that  everything  that  frightens  your 
horse  or  causes  an  accident  is  a  defect  in  the  highway.  —  Don't 
fail  to  give  notice  in  writing  if  you  meet  with  an  accident  on 
the  road.  —  Don't  convey  land  encumbered  with  a  right  of 
way.  —  Don't  keep  a  barking  dog 73-83 


CHAPTER  XVII. 

FOOT-PATHS. 

Necessity  of  air,  sunlight,  and  exercise.  — The  progenitors  of  every 
vigorous  race  have  found  in  forest  and  wilderness  the  sources 


CONTENTS.  Xlli 

.  PAGE 

of  their  strength.  —  The  Israelites,  Greeks,  Romans,  Dutch, 
Anglo-Saxons.  —  The  teachings  of  Nature  essential  to  the  de- 
velopment of  the  human  mind.  —  Job,  David,  Plato,  Aristotle, 
Christ,  Wordsworth.  —  Foot-paths  tend  to  bring  people  into  the 
open  air  and  into  communion  with  Nature.  —  The  by-ways 
of  old  England.  —  Towns  and  cities  should  lay  out  foot-paths  84-88 

CHAPTER  XVHI. 

WITHIN  AND  WITHOUT  THE  ROADSIDE. 

Every  dweller  under  obligation  to  maintain  neatness  and  order 
within  and  without  his  roadside.  —  Unselfish  exertion  in  this 
behalf  pays.  —  He  who  beautifies  the  roadside  benefits  mankind 
and  himself  alike.  —  A  dirty  and  shabby  dwelling  gives  a 
traveller  a  mean  idea  of  its  inmates.  —  A  cosey  and  clean  house 
always  speaks  well  for  its  inmates.  —  Every  homestead  should 
be  adorned  with  trees.  —  The  beauty  and  utility  of  trees.  — 
They  are  inseparable  from  well-tilled  land  and  beautiful  scen- 
ery. —  Wayside  shrubbery  :  its  use  and  abuse  ;  it  should  be 
allowed  where  green  grass  will  not  grow  89-94 

CHAPTER  XIX. 

ENJOYMENT   OF  THE  ROAD. 

A  traveller  should  have  a  hopeful  and  sunshiny  disposition.  —  He 

should  be  in  harmony  with  Nature  ;  he  should  have  an  observ-  ' 
ing  eye  to  enjoy  the  latent  enjoyments  of  the  way.  —  How  the 
observing  faculties  may  be  cultivated.  —  The  pleasures  inci- 
dent to  knowing  how  to  appreciate  the  beautiful  in  Nature.  — 
The  different  degrees  of  enjoyment  in  the  same  situation.  — 
The  love  of  Nature  the  sign  of  goodness  of  heart.  —  Ruskin, 
Wordsworth,  Christ.  —  What  an_pl2S£rving  traveller  can  see  t« 
admire  and  enjoy  on  the  road,  —  grass,  flowers,  trees,  as  re- 
minders of  human  beings,  domestic  and  pastoral  scenery, 
mountains,  animal  and  vegetable  life,  sun  and  sunlight, 
latent  enjoyments  in  himself 95-104 


xiv  CONTENTS. 

CHAPTER  XX. 

SIDEWALKS  AND   CROSSWALKS. 

PAGE 

Sidewalks  and  crosswalks  are  part  of  the  highway,  but  distinct.  — 
They  may  be  used  by  adjoining  owners  and  by  the  public.  — 
What  pedestrians  may  take  with  them  on  these  walks.  —  Where 
and  how  they  should  be  constructed,  and  by  whom.  —  They 
should  be  kept  free  from  obstructions. — Who  liable  for  defects 
therein.  —  What  are  defects 105-121 

CHAPTER   XXI. 

BICYCLES   AND   TRICYCLES. 

Bicycles  and  tricycles  among  the  marvellous  inventions  of  the 
19th  century.  —  Their  use  conducive  to  public  convenience 
and  health.  —  Their  legal  status  an  important  question.  — 
They  should  be  treated  the  same  as  ordinary  road  vehicles.  — 
They  are  out  of  place  on  sidewalks.  —  Their  use  in  public 
parks  and  commons.  —  The  law  relative  to  their  use  in  Eng- 
land and  the  United  States  .  122-136 


THE    ROAD 

AND 

THE    ROADSIDE. 


THE    ROAD 


AND 


THE      EOADSIDE. 


CHAPTER  I. 

HISTORY,  IMPORTANCE,  AND   SIGNIFICANCE  OF  ROADS. 

THE  development  of  the  means  of  communication 
between  different  communities,  peoples,  and  races  has 
ever  been  coexistent  with  the  progress  of  civilization. 
Lord  Macaulay  declares  that  of  all  inventions,  the  alpha- 
bet and  printing-press  alone  excepted,  those  inventions 
which  abridge  distance  have  done  most  for  the  civiliza- 
tion of  our  species.  Every  improvement  of  the  means 
of  locomotion  benefits  mankind  morally  and  intellect- 
ually as  well  as  materially. 

"  The  road,"  Bushnell  says,  "  is  that  physical  sign  or 
symbol  by  which  you  will  best  understand  any  age  or 
people.  If  they  have  no  roads,  they  are  savages ;  for 
the  road  is  the  creation  of  man  and  a  type  of  civilized 
society.  If  you  wish  to  know  whether  society  is  stag- 
nant, learning  scholastic,  religion  a  dead  formality,  you 
may  learn  something  by  going  into  universities  and 

1 


THE   EOAD   AND   THE   EOADSIDE. 


libraries,  something  also  by  the  work  that  is  doing  on 
cathedrals  and  churches  or  in  them,  but  quite  as  much 
by  looking  at  the  roads ;  for  if  there  is  any  motion  in 
society,  the  road,  which  is  the  symbol  of  motion,  will 
indicate  the  fact." 

As  roads  are  the  symbols  of  progress,  so,  according  to 
the  philosophy  of  Carlyle,  they  should  only  be  used  by 
working  and  progressive  people,  as  he  asserts  that  the 
public  highways  ought  not  to  be  occupied  by  people 
demonstrating  that  motion  is  impossible.  Hence,  when 
we  trace  back  the  history  of  the  race  to  the  dawn  of 
civilization,  we  find  that  the  first  sponsors  of  art  and 
science,  commerce  and  manufacture,  education  and  gov- 
ernment, were  the  builders  and  supporters  of  public 
highways. 

The  two  most  ancient  civilizations  situated  in  the 
valleys  of  the  Nile  and  the  Euphrates  were  connected 
by  a  commercial  and  military  highway  leading  from 
Babylon  to  Memphis,  along  which  passed  the  war  char- 
iots and  the  armies  of  the  great  chieftains  and  military 
kings  of  ancient  days,  and  over  which  were  carried  the 
gems,  the  gold,  the  spices,  the  ivories,  the  textile  fabrics, 
and  all  the  curious  and  unrivalled  productions  of  the 
luxurious  Orient.  On  the  line  of  this  roadway  arose 
Nineveh,  Palmyra,  Damascus,  Tyre,  Antioch,  and  -other 
great  commercial  cities. 

On  the  southern  shores  of  the  Mediterranean  the 
Carthaginians  built  up  and  consolidated  an  empire  so 
prominent  in  military  and  naval  achievements  and  in 
the  arts  and  industries  of  civilized  life,  that  for  four 


HISTORY  AND  SIGNIFICANCE  OF  ROADS.  3 

hundred  years  it  was  able  to  hold  its  own  against  the 
preponderance  of  Greece  and  Eome  ;  and  as  might  have 
been  expected,  they  were  systematic  and  scientific  road- 
makers  from  whom  the  Homans  learned  the  art  of 
road-building. 

The  Eomans  were  apt  scholars,  and  possessed  a  won- 
derful capacity  not  only  to  utilize  prior  inventions  but 
also  to  develop  them.  They  were  beyond  question  the 
most  successful  and  masterful  road-builders  in  the  an- 
cient world ;  and  the  perfection  of  their  highways  was 
one  of  the  most  potent  causes  of  their  superiority  in 
progress  and  civilization.  When  they  conquered  a 
province  they  not  only  annexed  it  politically,  by  im- 
posing on  its  people  their  laws  arid  system  of  gov- 
ernment, but  they  annexed  it  socially  and  commercially, 
by  the  construction  of  good  roads  from  its  chief  places  to 
one  or  more  of  the  great  roadways  which  brought  them  in 
easy  and  direct  communication  with  the  metropolis  of  the 
Eoman  world.  And  when  their  territory  reached  from 
the  remote  east  to  the  farthest  west,  and  a  hundred  mil- 
lions of  people  acknowledged  their  military  and  political 
supremacy,  their  capital  city  was  in  the  centre  of  such  a 
network  of  highways  that  it  was  then  a  common  saying, 
"  All  roads  lead  to  Eome."  From  the  forum  of  Eome  a 
broad  and  magnificent  highway  ran  out  towards  every 
province  of  the  empire.  It  was  terraced  up  with  sand, 
gravel,  and  cement,  and  covered  with  stones  and  granite, 
and  followed  in  a  direct  line  without  regard  to  the  con- 
figuration of  the  country,  passing  over  or  under  moun- 
tains and  across  streams  and  lakes,  on  arches  of  solid 


4  THE   ROAD  AND  THE  ROADSIDE. 

masonry.  The  military  roads  were  under  the  pretors, 
and  were  called  pretorian  roads ;  and  the  public  roads 
for  travel  and  commercial  traffic  were  under  the  con- 
suls, and  were  called  consular  roads.  These  roads  were 
kept  entirely  distinct;  the  pretorian  roads  were  used 
for  the  marching  of  armies  and  the  transportation  of 
military  supplies,  and  the  consular  roads  were  used 
for  traffic  and  general  travel.  They  were  frequently 
laid  out  alongside  of  each  other  from  place  to  place, 
very  much  as  railroads  and  highways  are  now  found 
side  by  side.  The  consular  roads  were  generally  twelve 
feet  wide  in  the  travelled  pathway,  with  a  raised  foot- 
way on  the  side ;  but  sometimes  the  footway  was  in  the 
middle  of  the  road,  with  a  carriage-way  on  each  side  of 
it.  The  military  roads  were  generally  sixty  feet  wide, 
with  an  elevated  centre,  twenty  feet  wide,  and  slopes 
upon  either  side,  also  twenty  feet  wide.  Stirrups  were  not 
then  invented,  and  mounting  stones  or  blocks  were  ne- 
cessary accommodations ;  and  hence  the  lines  of  the  roads 
were  studded  with  mounting-blocks  and  also  with  mile- 
stones. Some  of  these  roads  could  be  travelled  to  the 
north  and  eastward  two  thousand  miles ;  and  they  were 
kept  in  such  good  repair  that  a  traveller  thereon,  by 
using  relays  of  horses,  which  were  kept  on  the  road, 
could  easily  make  a  hundred  miles  a  day.  Far  as  the 
eye  could  see  stretched  those  symbols  of  her  all-con- 
quering and  all-attaining  influence,  which  made  the 
most  distant  provinces  a  part  of  her  dominions,  and 
connected  them  with  her  imperial  capital  by  imperial 
highways. 


HISTORY  AND   SIGNIFICANCE  OF  ROADS.  5 

The  Romans  not  only  had  great  public  highways,  but 
they  possessed  a  complete  and  systematic  network  of 
cross-roads,  which  connected  villages,  and  brought  into 
communication  therewith  cultivated  farms  and  prosper- 
ous homesteads.  In  Italy  alone  it  is  estimated  that  they 
had  about  fourteen  thousand  miles  of  good  roads.  Their 
laws  relating  to  the  construction  and  maintenance  of 
highways  were  founded  in  reason  and  a  just  conception 
of  the  uses  and  objects  of  public  ways  ;  and  they  are  the 
basis  of  modern  highway  legislation.  By  their  law  the 
roads  were  for  the  public  use  and  convenience,  and  their 
emperors,  consuls,  and  other  public  officials  were  their 
conservators.  They  were  built  at  the  public  expense, 
under  the  supervision  of  professional  engineers  and  sur- 
veyors, and  kept  in  repair  by  the  districts  and  provinces 
through  which  they  passed. 

But  during  the  dark  ages,  when  arts  were  lost,  when 
popular  learning  disappeared  or  found  shelter  only  in 
cloisters  and  convents,  when  commercial  intercourse  be- 
tween nations  vanished,  and  when  civilization  itself  lay 
fallen  and  inert,  these  magnificent  Koman  roads  were 
unused  and  left  to  the  destructive  agencies  of  time  and 
the  elements  of  Nature.  Rains  and  floods  washed  away 
and  inundated  their  embankments ;  forests  and  rank 
vegetation  overgrew  and  concealed  them  ;  winds  covered 
them  with  dust  and  heaps  of  sand;  and  little  by  little  in 
the  process  of  ages  their  hard  surfaces  and  massive  foun- 
dations were  somewhat  broken  and  caused  to  partially 
decay.  That  their  remains  still  exist  in  every  part  of 
the  world  which  ever  bore  up  the  Roman  legions  is 


6  THE  ROAD  AND  THE  ROADSIDE. 

conclusive  evidence  that  they  were  built  by  master 
workmen  who  realized  that  they  were  responsible  to 
posterity  and  to  the  eternal  powers. 

"  In  the  elder  days  of  Art 

Builders  wrought  with  greatest  care 
Each  minute  and  unseen  part ; 
For  the  gods  see  everywhere." 

In  China,  at  one  time,  labor  was  so  abundant  that 
it  was  kept  employed  in  constructing  great  walls  and 
ponderous  roads.  The  road-bed  was  raised  several  feet 
above  the  level  of  the  ground  by  an  accumulation  of 
great  stones,  and  then  covered  with  huge  granite  blocks. 
It  was  found  that  in  time  the  wheels  of  vehicles  wore 
deep  ruts  in  the  stones,  while  the  travelled  part  of  the 
road  became  so  smooth  that  it  was  almost  impossible  for 
animals  to  stand  thereon. 

In  the  ancient  empires  of  Mexico  and  Peru,  where 
there  were  no  beasts  fit  for  draught  or  for  riding,  mag- 
nificent roads  were  constructed  for  the  treble  purpose 
of  facilitating  the  march  of  armies,  accommodating  the 
public  traffic,  and  ministering  to  the  convenience  and 
luxury  of  the  lordly  rulers.  In  Peru  two  of  these  roads 
were  from  fifteen  hundred  to  two  thousand  miles  long, 
extending  from  Quito  to  Chili,  —  one  by  the  borders  of 
the  ocean,  and  the  other  over  the  grand  plateau  by  the 
mountains.  Prescott  says  :  "  The  road  over  the  plateau 
was  conducted  over  pathless  sierras  buried  in  snow ; 
galleries  were  cut  for  leagues  through  the  living  rock ; 
rivers  were  crossed  by  means  of  bridges  that  swung  sus- 
pended in  the  air ;  precipices  were  scaled  by  stairways 


HISTORY  AND   SIGNIFICANCE   OF  ROADS.  7 

hewn  out  of  the  native  bed ;  ravines  of  hideous  depth 
were  filled  up  with  solid  masonry ;  in  short,  all  the 
difficulties  that  beset  a  wild  and  mountainous  region, 
and  which  might  appall  the  most  courageous  engineer 
of  modern  times,  were  encountered  and  successfully 
overcome.  Stone  pillars  in  the  manner  of  European 
milestones  were  erected  at  stated  intervals  of  somewhat 
more  than  a  league  all  along  the  route.  Its  breadth 
scarcely  exceeded  twenty  feet.  It  was  built  of  heavy 
flags  of  freestone,  and  in  some  parts,  at  least,  covered 
with  a  bituminous  cement,  which  time  has  made  harder 
than  the  stone  itself.  In  some  places  where  the  ravines 
had  been  filled  up  with  masonry,  the  mountain  torrents, 
wearing  on  it  for  ages,  have  gradually  eaten  a  way 
through  the  base,  and  left  the  superincumbent  mass  — 
such  is  the  cohesion  of  the  materials  —  still  spanning 
the  valley  like  an  arch. 

"Another  great  road  of  the  Incas  lay  through  the 
level  country  between  the  Andes  and  the  ocean.  It  was 
constructed  in  a  different  manner,  as  demanded  by  the 
nature  of  the  ground,  which  was  for  the  most  part  low, 
and  much  of  it  sandy.  The  causeway  was  raised  on  a 
high  embankment  of  earth,  and  defended  on  either  side 
by  a  parapet  or  wall  of  clay ;  and  trees  and  odoriferous 
shrubs  were  planted  along  the  margin,  regaling  the  sense 
of  the  traveller  with  their  perfume,  and  refreshing  him 
by  their  shades,  so  grateful  under  the  burning  sky  of  the 
tropics. 

"  The  care  of  the  great  roads  was  committed  to  the  dis- 
tricts through  which  they  passed,  and  a  large  number  of 


8  THE  ROAD  AND  THE  ROADSIDE. 

hands  was  constantly  employed  to  keep  them  in  repair. 
This  was  the  more  easily  done  in  a  country  where  the 
mode  of  travelling  was  altogether  on  foot ;  though  the 
roads  are  said  to  have  been  so  nicely  constructed  that  a 
carriage  might  have  rolled  over  them  as  securely  as  on 
any  of  the  great  roads  of  Europe.  Still,  in  a  region 
where  the  elements  of  fire  and  water  are  both  actively 
at  work  in  the  business  of  destruction,  they  must  with- 
out constant  supervision  have  gradually  gone  to  decay. 
Such  has  been  their  fate  under  the  Spanish  conquerors, 
who  took  no  care  to  enforce  the  admirable  system  for 
their  preservation  adopted  by  the  Incas.  Yet  the  broken 
portions  that  still  survive  here  and  there,  like  the  frag- 
ments of  the  great  Koman  roads  scattered  over  Europe, 
bear  evidence  of  their  primitive  grandeur,  and  have 
drawn  forth  eulogium  from  the  discriminating  traveller ; 
for  Humboldt,  usually  not  profuse  in  his  panegyrics, 
says, '  The  roads  of  the  Incas  were  among  the  most 
useful  and  stupendous  works  ever  executed  by  man.' " 

With  the  revival  of  human  thought  and  civilization 
after  the  Middle  Ages,  the  improvement  of  the  roads 
engaged  the  attention  of  public  and  scientific  men,  and 
became  once  more  an  object  of  government ;  but  for  a 
long  time  the  rulers  who  concerned  themselves  about 
roads  thought  more  about  repressing  the  crimes  of 
violence  and  extortion  thereon  than  they  did  about 
improving  their  condition  for  travel.  The  first  act  of 
the  English  Parliament  relative  to  the  improvement  of 
roads  in  the  kingdom  was  in  1523 ;  yet  in  1685  most 
of  the  roads  in  England  were  in  a  deplorable  condition. 


HISTORY  AND    SIGNIFICANCE  OF   ROADS.  9 

Macaulay  says  that  on  the  best  highways  at  that 
time  the  ruts  were  deep,  the  descents  precipitous,  and 
the  way  often  such  that  it  was  hardly  possible  to  dis- 
tinguish it  in  the  dark  from  the  unenclosed  heath  and 
fen  which  lay  on  both  sides.  It  was  only  in  fine 
weather  that  the  whole  breadth  of  the  road  was  avail- 
able for  wheeled  vehicles  ;  often  the  mud  lay  deep  on  the 
right  and  on  the  left,  and  only  a  narrow  track  of  firm 
ground  rose  above  the  quagmire.  It  happened  almost 
every  day  that  coaches  stuck  fast  until  a  team  of  cattle 
could  be  procured  from  some  neighboring  farm  to  tug 
them  out  of  the  slough.  But  to  the  honor  of  England, 
this  condition  of  her  roads  was  not  allowed  to  continue 
very  long.  Although  her  progress  in  trade  and  pros- 
perity has  been  marvellously  rapid,  yet  such  progress 
can  be  measured  by  the  improvement  of  her  roads,  which 
are  now  unsurpassed  anywhere  in  the  world. 

Beyond  question,  internal  communications  are  of  vital 
importance  to  every  nation,  and  good  roads  are  a  prime 
necessity  to  every  town  or  city.  A  good  road  is  always 
a  source  of  comfort  and  pleasure  to  every  traveller.  It 
is  also  a  source  of  great  saving  each  year  in  the  wear 
and  tear  of  horse-flesh,  vehicles,  and  harnesses.  Good 
roads  to  market  and  neighbors  increase  the  price  of  farm 
produce,  and  bring  people  ioto  business  relations  and 
good  fellowship,  and  thereby  enhance  in  value  every 
homestead  situated  in  their  neighborhood.  They  cause 
a  proper  distribution  of  population  between  town  and 
country.  For  many  years  in  this  country  there  has 
been  a  movement  of  population  from  the  rural  districts 


10         THE  KOAD  AND  THE  ROADSIDE. 

into  the  cities  and  manufacturing  villages.  Many  an- 
cestral homesteads  have  been  deserted  for  promising 
"  fresh  woods  and  pastures  new "  in  the  commercial 
world.  This  centralization  of  population  is  evidently 
a  violation  of  economic  laws,  and  when  carried  too  far 
results  in  business  depression,  in  the  multiplication  of 
tramps,  and  in  the  origination  and  development  of 
industrial  and  social  troubles.  The  remedy  for  this 
state  of  affairs  is  found  in  the  readjustment  and  proper 
distribution  of  population  between  town  and  country. 
When  men,  sick  of  waiting  on  waning  business  pros- 
pects, turn  to  the  soil  as  their  only  refuge  from  non- 
employment  and  surplus  productions  of  factories,  and 
reoccupy  and  rehabilitate  deserted  or  run-down  farms, 
then  business  revives,  and  the  wheels  of  industry  and 
enterprise  revolve  steadily  and  with  increased  velocity 
at  each  revolution.  Bad  roads  have  a  tendency  to  make 
the  country  disagreeable  as  a  dwelling-place,  and  a  town 
which  is  noted  for  its  bad  roads  is  shunned  by  people 
in  search  of  rural  homes.  On  the  other  hand^good 
roads  have  a  tendency  to  make  the  country  a  desir- 
able dwelling-place,  and  a  town  which  is  noted  for 
its  good  roads  becomes  the  abode  of  people  of  taste, 
wealth,  and  intelligence.  ^  Hence  it  behooves  every 
town  to  make  itself  a  desirable  place  of  residence; 
for  many  people  are  always  puzzling  themselves  over 
the  problem  of  where  and  how  to  Ijve,  and  those  towns 
which  have  their  floors  swept  and  garnished  and  their 
lamps  trimmed  and  burning  ready  to  receive  the  bride 
and  bridegroom,  will  be  most  likely  to  attract  within 


HISTORY  AND    SIGNIFICANCE   OF  ROADS.  11 

their  borders  the  seekers  of  farm  life  and  rural  homes. 
{ We  now  live  in  the  city  and  go  to  the  country  ;  but  we 
should  live  in  the  country  and  go  to  the  city!)  This  is 
"  a  consummation  devoutly  to  be  wished ; "  but  it  can 
never  be  brought  about  until  good  roads  connect  the 
cities  and  villages  with  the  green  fields  and  beautiful 
scener/  of  the  country.  All  money  and  labor  expended 
upon  them  result  immediately  in  a  convenience  and 
benefit  to  the  whole  community.  (^  Every  one  should 
deem  it  an  honor  to  be  able  to  do  anything  to  improve 
and  beautify  the  highways  of  his  town,  j  The  Lacede- 
monian kings  were  ex  qfficio  highway  surveyors,  and 
among  the  Thebans  the  most  illustrious  citizens  were 
proud  to  hold  that  office ;  and  a  few  years  ago  Horatio 
Seymour,  of  New  York,  said  that  his  only  remaining 
ambition  for  public  life  was  to  be  regarded  as  the  best 
path-master  in  Oneida  County. 


12         THE  ROAD  AND  THE  ROADSIDE. 


CHAPTER  II. 

LOCATION. 

WHEN  a  new  road  is  laid  out  it  is  important  that  it 
should  be  located  in  the  best  attainable  place,  consider- 
ing the  natural  formation  of  the  surrounding  country ; 
for  when  a  highway  is  once  established  it  is  impossible 
to  say  how  long  the  tide  of  humanity  and  commercial 
traffic  will  seek  passage  over  it.  While  the  ordinary 
processes  of  Nature  —  rain,  thaw,  and  frost  —  are  ever 
at  work  lowering  the  hills  and  mountains  and  filling 
up  the  valleys  and  lowlands,  the  public  highways  of  a 
country  remain  in  the  same  relative  positions  from  age 
to  age. 

The  great  commercial  and  military  highway  which 
in  the  early  dawn  of  Roman  history  led  from  the  banks 
of  the  placid  Euphrates  to  the  banks  of  the  many- 
mouthed  Nile  —  over  which  Abraham  once  wended  his 
weary  steps  on  his  way  to  Canaan,  over  which  the  hosts 
of  Xerxes  and  the  brave  phalanxes  of  Alexander  the 
Great  once  passed  in  all  the  pride  and  glory  of  war,  over 
which  the  wise  men  of  the  East  probably  journeyed  in 
search  of  him  who  was  born  King  of  the  Jews,  over 
which  Mary  fled  with  Christ  in  her  flight  into  Egypt, 
and  along  which  the  early  Christians  travelled  as  they 


LOCATION.  13 

went  forth  to  preach  the  fatherhood  of  God  and  the 
brotherhood  of  men  —  is  to-day  the  highway  over  which 
is  carried  on  the  overland  intercourse  between  the  Medi- 
terranean and  the  Persian  Gulf. 

Many  of  the  present  roads  in  Italy  and  the  neighbor- 
ing countries  are  identical  with  the  roads  over  which 
Caesar,  Cicero,  and  other  Romans  travelled  in  the  olden 
days ;  and  the  modern  British  roads  are  the  same,  in 
many  cases,  as  those  used  by  the  ancient  Britons  before 
the  Anglo-Saxon  conquest. 

The  law  of  the  survival  of  the  fittest  is  applicable  to 
the  location  of  roads,  and  any  well-located  road  is  liable 
to  be  used  as  a  public  way  during  the  occupancy  of  the 
earth  by  the  human  race  ;  and  if  it  is  not  made  famous 
by  the  passage  of  illustrious  persons  or  sanctified  by  the 
footsteps  of  saints,  yet  it  is  liable  to  be  travelled  through 
coming  ages  by  "mute  inglorious  Miltons"  and  by 
"care-encumbered  men."  It,  sometimes  happens  that 
men  and  women,  in  doing  faithfully  and  well  the  nearest 
duty,  perform  work  which  turns  out  better  than  they 
expect. 

"  The  hand  that  rounded  Peter's  dome, 
And  groined  the  aisles  of  Christian  Rome, 
Wrought  in  a  sad  sincerity  ; 

He  builded  better  than  he  knew." 

The  originators  of  many  great  reforms  in  law  and 
religion,  in  working  to  establish  principles  applicable 
and  needful  to  local  issues,  have  thereby,  unconsciously 
to  themselves,  established  principles  which  have  proved 
beneficial  and  applicable  to  the  whole  human  race.  In 


14         THE  ROAD  AND  THE  EOADSIDE. 

the  stress  of  trying  times  we  have  discovered  in  the  con- 
stitution of  our  country  latent  powers  which  its  framers 
never  dreamed  were  there.  Thus  it  is  with  the  humble 
occupation  of  road-building.  A  road  constructed  for 
the  convenience  of  some  primitive  community  or  to 
gratify  the  caprice  of  some  rich  man  or  lordly  ruler  be- 
comes often  in  after  years  an  Appian  Way  for  public 
travel  and  commercial  intercourse. 

A  road  may  be  located  in  one  of  three  ways.  It  may 
be  laid  out  in  a  straight  line  by  crossing  lowlands  in  the 
mud  and  going  over  hills  at  steep  grades.  The  ancient 
Britons,  like  the  early  settlers  in  this  country,  estab- 
lished their  homesteads  and  villages  on  commanding 
situations,  and  ran  their  roads  and  bridle-paths  in  direct 
courses  by  their  habitations.  The  Komans,  possessors  of 
great  wealth  and  abundant  slave-labor,  built  their  mili- 
tary and  public  roads  in  direct  lines  from  place  to  place, 
regardless  of  expense.  In  this  way  they  shortened  dis- 
tances somewhat,  but  their  roads  must  have  been  con- 
structed at  enormous  expense  in  money  and  labor. 
Their  roads  were  marvels  of  engineering  skill  and  work- 
manship, which  even  now,  after  the  lapse  of%eighteen  cen- 
turies, impress  every  thoughtful  observer  with  the  idea 
that  he  is  in  the  presence  of  the  work  of  the  immortals. 
They  threw  arched  bridges  of  solid  masonry  over  rivers 
and  across  ravines ;  they  cut  tunnels  through  mountains, 
and  sometimes  carried  their  roads  underground  for  the 
sole  purpose  of  shelter  from  the  sun;  they  levelled 
heights  and  made  deep  cuts  through  hills ;  and  when 
they  came  to  a  marsh  they  built  a  causeway  high 


LOCATION".  15 

enough  and  strong  enough  to  make  it  safe  and  dry  at 
all  seasons  of  the  year.  This  mode  of  location  is  still 
followed  in  the  Latin  countries  of  Italy,  France,  and 
Spain,  where  many  of  the  roads  are  identical  with  the 
old  Bom  an  roads. 

The  other  mode  of  locating  a  highway  is  to  seek  the 
"best  attainable  grade  the  country  will  permit  of  by  wind- 
ing through  valleys  and  around  and  across  hills.  There 
is  obviously  one  advantage  to  a  perfectly  straight  road 
between  two  places  :  it  is  the  nearest  route.  But  this  is 
about  the  only  advantage  a  straight  road  has  over  a 
curved  one.  In  a  hilly  country  a  straight  road  is  fre- 
quently no  shorter  than  a  curved  one,  because  the  dis- 
tance around  a  hill  is  generally  no  greater  than  over  it, 
as  the  length  of  a  pail-handle  is  the  same  whether  it  is 
vertical  or  in  a  horizontal  position.  In  an  uneven  coun- 
try a  straight  road  with  anything  like  the  same  grade  as 
the  curved  road  can  only  be  constructed  at  enormous 
and  unnecessary  expense  and  labor.  Even  in  a  level 
country  a  road  curved  sufficiently  to  give  variety  of 
view  and  to  conform  to  Hogarth's  "  line  of  beauty  "  is 
preferable  to  a  perfectly  straight  road,  which  is  always 
tedious  to  the  traveller. 

"The  road  the  human  being  travels, 
That  on  which  blessing  comes  and  goes,  doth  follow 
The  river's  course,  the  valley's  playful  windings, 
Curves  round  the  corn-field  and  the  hill  of  vines. " 

Moreover,  we  are  told  by  competent  engineers  that 
the  difference  in  length  between  a  straight  and  a  slightly 
curved  road  is  very  small.  Thus,  if 'a  road  between  two 


16          THE  ROAD  AND  THE  EOADSIDE. 

places  ten  miles  apart  was  made  to  curve  so  that  the 
eye  could  nowhere  see  farther  than  a  quarter  of  a  mile 
of  it  at  once,  its  length  would  exceed  that  of  a  perfectly 
straight  road  between  the  same  points  by  only  about 
one  hundred  and  fifty  yards. 

But,  in  any  event,  in  road-making  mere  straightness 
should  always  yield  to  a  level  grade,  even  if  thereby 
the  distance  is  greatly  increased ;  for  on  a  good  grade  a 
horse  can  draw  rapidly  and  easily  a  load  which  it  would 
be  impossible  for  him  to  draw  on  a  steep  grade.  It  is 
an  accepted  maxim  by  road-engineers  that  the  horizon- 
tal length  of  a  road  may  be  advantageously  increased, 
to  avoid  an  ascent,  by  at  least  twenty  times  the  perpen- 
dicular height  which  is  to  be  thus  saved;  that  is,  to 
escape  a  hill  a  hundred  feet  high,  it  would  be  proper 
for  the  road  to  make  such  a  circuit  as  would  increase 
its  length  to  two  thousand  feet. 

Hence  it  is  apparent  that  the  ordinary  road  in  a  hilly 
and  uneven  country  should  follow  the  streams  as  far  as 
possible,  as  Nature  has  located  them  in  the  places  best 
adapted  for  highways ;  and  when  hills  are  found  on  the 
line  of  a  road  they  should  be  surmounted  by  passing 
around  and  across  them  at  the  easiest  grades  possible 
rather  than  over  them  at  steep  grades. 


CONSTRUCTION.  17 


CHAPTER  III. 

CONSTRUCTION. 

SUITABLE. drainage  is  the  first  requisite  of  a  good  road, 
as  with  our  climate  and  soil  it  is  impossible  to  have  a 
road  in  a  satisfactory  condition  at  all  seasons  of  the  year 
unless  the  same  is  well  drained.  In  building  a  new 
road  provisions  should  be  made  to  get  rid  of  all  surface 
water,  and  in  wet  land  of  the  water  in  the  soil,  by  ditches 
and  drains  sufficient  to  dispose  of  it  in  a  thorough  man- 
ner ;  and  in  repairing  an  old  road  it  frequently  happens 
that  its  condition  can  be  greatly  improved  and  some- 
times perfected  by  simply  providing  proper  drainage  for 
it.  It  is  not  sufficient  to  have  ditches  on  each  side  of 
the  road ;  for  if  the  water  stands  in  them  it  is  liable  to 
make  the  road  muddy  and  to  weaken  its  substratum. 
The  ditches  themselves  should  be  thoroughly  drained, 
and  all  the  water  which  accumulates  in  them  should  be 
carried  into  the  natural  watercourses  of  the  country,  or 
at  any  rate  beyond  the  limits  of  the  highway. 

Every  carriage-road  ought  to  be  wide  enough  at  nearly 
all  points  to  allow  two  vehicles  to  pass  each  other  in 
safety.  Whether  it  should  be  wider  than  that  depends 
upon  its  location  and  its  importance  as  a  public  thor- 
oughfare. Any  unnecessary  width  should  be  avoided, 

2 


18         THE  ROAD  AND  THE  EOADSIDE. 

except  on  pleasure  and  showy  boulevards,  because  thereby 
land  is  wasted,  and  labor  and  cost  in  construction  and 
repair  are  increased.  All  important  highways  should  be 
wide  enough  to  admit  of  footpaths  five  or  six  feet  wide 
on  each  side,  and  of  a  macadamized  or  travelled  way 
commensurate  to  the  public  traffic  thereon. 

If  a  road  is  to  be  made  wider  than  two  vehicles  require, 
it  should  be  made  wide  enough  to  accommodate  one  or 
more  vehicles ;  for  any  intermediate  width  causes  unequal 
and  excessive  wear,  and  therefore  is  false  economy. 

The  road-bed  should  generally  be  raised  above  the  level 
of  the  surrounding  land,  in  order  that  it  may  be  as  free 
as  possible  from  water;  and  it  should  "crown"  suffi- 
ciently to  allow  all  the  surface  water  to  find  its  way 
quickly  into  the  side  ditches.  If  it  is  not  crowned 
enough,  it  soon  becomes  hollow,  and  therefore  either 
muddy  or  dusty,  and  in  times  of  heavy  rains  or  thaws 
the  water  stands  or  flows  in  the  middle  of  the  road.  If 
it  is  crowned  too  much,  the  drivers  of  vehicles  will  seek 
the  middle  of  the  road  in  order  to  keep  their  vehicles  in 
level  positions,  and  consequently  the  excessive  travel  in 
one  part  of  the  road  soon  wears  it  into  ruts  in  which 
water  accumulates,  and  carriages  in  meeting  are  forced 
to  travel  on  a  side  hill,  which  causes  unnecessary  wear 
to  the  road  by  sliding  down  towards  the  ditches.  This 
sliding  tendency  greatly  augments  the  labor  of  the  horses 
and  the  wear  and  tear  of  the  carriages.  Evidently,  then, 
the  wise  course  to  pursue  in  the  matter  of  crowning  the 
road  is  to  hit  the  golden  mean.  Much  of  success  in 
life  depends  upon  striking  the  golden  mean,  for  human 


CONSTRUCTION.  19 

experience  teaches  that  those  who  follow  in  this  pathway 
are  apt  to  find  themselves  among  the  happy  and  the 
successful.  The  advice  which  the  wise  old  Horace  made 
a  sage  seaman  give  two  thousand  years  ago  is  good 
for  road-makers  of  to-day, — 

"  Licinius,  trust  a  seaman's  lore  : 

Steer  not  too  boldly  to  the  deep  ; 
Nor  dreading  storms  by  treacherous  shore 
Too  closely  creep." 

It  ought  therefore  to  be  an  accepted  maxim  in  road- 
making  that  the  road-bed  should  be  so  constructed  as  to 
induce  vehicles  to  travel  it  equally  in  every  part. 

For  our  climate  and  soil,  no  doubt,  a  macadamized  road 
is  the  cheapest  and  best  for  general  travel  This  is 
made  by  covering  the  bottom  of  the  road-bed  with  stones 
broken  into  angular  pieces  to  a  depth  of  from  four  to 
twelve  inches.  TJie  bottom  of  the  road-bed  should  be 
solid  earth,  and  crowned  sufficiently  to  carry  off  all  water 
that  may  reach  it.  The  depth  of  the  stone  coating  may 
properly  vary  from  four  to  twelve  inches,  as  required  by 
the  nature  of  the  soil,  the  climate,  and  the  travel  on 
it :  and  the  size  of  the  broken  stones  may  also  be 
varied  to  meet  the  requirements  of  the  road.  If  there 
is  to  be  heavy  travel  on  the  road,  the  stone  coating  should 
be  thicker  than  on  a  road  over  which  only  lightly  loaded 
teams  are  expected  to  pass ;  and  in  the  former  case  the 
broken  stones  should  be  larger  than  in  the  latter  case. 
In  any  event,  the  top  of  the  stone  coating  should  be  com- 
posed of  stones  broken  into  small  fragments.  A  coating, 
from  four  to  six  inches  in  depth,  of  broken  stones  from 


20         THE  ROAD  AND  THE  EOADSIDE. 

one  to  two  inches  in  diameter  is  ordinarily  sufficient  to 
make  a  hard,  dry,  and  beautiful  country-road,  if  kept  up 
at  all  seasons  of  the  year.  Flat  or  round  stones  should 
never  be  used,  because  they  will  not  unite  and  consoli- 
date into  a  mass,  as  small  angular  stones  will  do.  When 
travel  is  first  admitted  upon  the  stone  coating,  the  ruts 
should  be  filled  up  as  soon  as  formed ;  or  what  is  better, 
a  heavy  roller  should  be  used  until  the  stones  have 
become  well  consolidated. 

Sometimes  in  wet  or  clayey  soil  it  is  well  to  put  at 
the  bottom  of  the  stone  coating  a  layer  of  large  stones, 
set  on  their  broadest  edges  and  lengthwise  across  the 
road  in  the  form  of  a  pavement.  This  is  called  a  Tel- 
ford  road,  and  has  advantages  over  the  McAdam  road 
in  a  soil  retentive  of  moisture,  as  the  layer  of  large 
stones  operates  as  an  under  drain  to  the  stone  coating 
above  it. 

It  is  undoubtedly  true  that  the  McAdam  or  Telford 
road  is  the  best  road  for  all  practical  purposes  in  this 
country,  and  will  be  the  country  road  of  the  future ;  yet 
it  is  also  true  that  the  most  of  our  highways  are  mere 
earth-roads,  and  will  probably  remain  such  for  many 
years,  and  it  is  therefore  desirable  that  they  should  be 
constructed  as  well  as  they  can  be  made.  It  is  an  ad- 
mitted canon  of  the  road-making  art,  that  a  road  ought 
to  be  so  hard  and  smooth  that  wheels  will  roll  easily 
over  it  and  not  sink  into  it,  so  dry  and  compact  that 
rain  will  not  affect  it  beyond  making  it  dirty,  and  its 
component  parts  so  firmly  moulded  together  that  the 
sun  cannot  convert  them  into  deep  dust.  Therefore  the 


CONSTRUCTION.  21 

travelled  part  of  an  earth-road  should  not  be  composed 
of  loam  fertile  enough  for  a  corn-field,  nor  of  sand  deep 
enough  for  a  beach.  If  the  road  runs  through  sandy 
land,  it  can  be  greatly  and  cheaply  improved  by  cover- 
ing it  with  a  few  inches  of  clayish  soil ;  and  if  it  runs 
through  clayey  land,  a  similar  application  of  sand  will 
be  beneficial.  A  gravelly  soil  is  usually  the  best  mate- 
rial for  an  earth-road,  and  when  practicable  every  such 
road  should  be  covered  with  a  coating  of  it.  The  larger 
gravel,  however,  should  never  be  placed  at  the  bottom 
and  the  smaller  at  the  top,  as  the  frost  and  the  vehicles 
will  cause  the  large  gravel  to  rise  and  the  small  to  de- 
scend, like  the  materials  in  a  shaken  sieve,  and  the  road 
will  never  become  smooth  and  hard. 


22         THE  KOAD  AND  THE  ROADSIDE. 


CHAPTER  IV. 

REPAIRS. 

AFTER  a  road  is  located  and  constructed,  economy  as 
well  as  public  convenience  demands  that  it  be  kept  in 
good  condition  the  year  round.  If  a  road  is  allowed 
to  go  for  several  months  at  a  time  without  repairs, 
ruts  and  holes  are  likely  to  form  on  its  surface,  and 
frequently  the  middle  becomes  lower  than  the  sides. 
Then,  in  order  to  put  it  in  good  condition  again,  a  great 
deal  of  work  and  expense  are  necessary,  whereas  if  every 
break  is  repaired  immediately,  much  less  labor  and  ex- 
pense are  required  to  keep  up  the  road  for  the  same 
length  of  time,  besides  the  increased  advantage  and  con- 
venience of  a  good  road  from  day  to  day. 

No  doubt  our  roads  could  be  kept  in  better  condition 
than  at  present  without  any  additional  expense,  by  the 
application  of  good  sense  and  business  principles  in 
their  management.  The  present  system  in  nearly  all 
our  country  towns  consists  in  dividing  up  the  roads 
into  districts,  and  appointing  a  highway  surveyor  for 
each  district,  with  a  stated  allowance  of  money  to  expend 
on  repairs  ;  and  sometimes  the  tax-payer  residing  in  the 
district  has  a  right  to  wrork  out  his  road  tax.  This  sur- 
veyor is  usually  a  farmer,  who  is  very  busy  during 


REPAIRS.  23 

planting-time  in  the  spring,  and  during  the  haying  and 
harvesting  seasons ;  and  consequently  he  works  upon 
the  roads  between  the  planting  and  the  haying  seasons, 
or  in  the  autumn  after  he  has  finished  the  fall  work 
upon  his  farm.  It  sometimes  happens  that  he  works 
out  all  the  money  allowed  him  in  early  summer,  and 
then  nothing  more  is  done  for  a  year. 

If  a  road  is  only  to  be  repaired  once  a  year,  the  work 
ought  to  be  done  in  the  spring,  when  the  soil  is  moist 
and  will  pack  together  hard,  and  not  in  the  summer, 
when  it  is  dry  and  turns  easily  to  dust,  nor  in  the  late 
autumn,  when  the  fall  rains  make  it  muddy.  The  sur- 
veyor generally  makes  the  repairs  by  ploughing  up  the 
road-bed  and  smoothing  it  off  a  little,  or  else  by  plough- 
ing up  the  dust,  turf,  and  stones  alongside  the  road-bed, 
and  scraping  the  same  upon  it.  After  this  is  done  he 
goes  about  his  farm  work. 

The  stones  in  the  road  soon  begin  to  work  up  to  the 
surface,  and  remain  there  like  so  many  footballs  for 
every  horse  to  kick  as  he  passes  over  them.  A  horse- 
path naturally  forms  in  the  centre  of  the  road,  and 
wheel-ruts  upon  either  side,  which  make  excellent 
channels  for  the  water  to  run  in  during  every  rain- 
storm. At  first  the  water  finds  its  way  over  the  water- 
bars  in  small  quantities ;  but  the  channels  increase  in 
depth  with  every  shower,  and  soon  during  every  hard 
rain  there  are  from  one  to  three  streams  of  water  running 
over  the  road-bed  from  the  top  to  the  bottom  of  nearly 
every  hill,  and  as  a  consequence  the  road  is  washed  all 
to  pieces.  The  road  then  generally  remains  in  this  con- 


AH*  tttl 

•-\  mart  tta  ***t  &U»  ftftdi  tMMttaftft  until 


tlmt  it  fe  in  *  taft 
iV  \t*  v  ,tusi  *tW  \viwi 

U^vi  in  tetter  ^nUUvm  to  W    knHd  ti** 


miiw  *tvd  tlM  Kxv^  llMMi  ttftkil  it  Ml  ftgftiu  ;  il 
until 


r>,c    -.^   »,N    ;,-  -,v.v,,s->   ;V.>  si.;/  ,;  ,  \,  -  ,  •.,  :,  /,.•,;.  Sv 


in  tit* 

MV  Wt  *t  «tt  UWM  ^wn  tiMM  tt 
%d  te  ^»<i  to  tiM  rari*   A 
tittfe  khw  in  tb%  w^  <* 
in  c^ 


>«ti 

^     ti^ 

«  C 

•  *     "'"      •        •          •   N  -         •      -  ^  •  v  .....     •    •      •      >       >\  '.'i  »  .  S 


A^t^wMiliwA^ 

"'"     -    -  •  ......         s.     -  -       --  -      '         ......    >.   .....   :         .....      <      ____ 

*  •"      «•.-.•..»••.      >    v  '.      i     .,      \  .  >'..  ,      4  .....  .    .  \;       ,.».:,.      >.,.,,     v>  .  ,   .  ,•» 


tarn,  I--: 


nri-r*-"-*  a  distance  of  one  hundred  and  fifty 
aDd  lias  an  annual  traffk 
Leary  trains,  bare  fbnnd  bf 


condition  is  to  bare  ereijr  portion  of  it  looked  after 
every  day,  and  d  raing  dry  weather  ewer/  rod  of  it  k 
sprinkled  with  water,  Tbb  eoatnrajl^^a 
WM  adopted  in  Badeo,  Germany,  1S45.  It 

foond  tltat  it  was  lea 
tizan  the  old  «y  stem  of 

^Mi^tiify  goon  fcnmd  it  to  their  advantage  to 
Baden's  example  in  this  respect ;  and  now  Hie  new  sys- 
tem is  in  •uineml  we  in  afl  the  emitted  nations  of 
Europe.  As  a  eonsec  .  u  ti  OH 


of  onr  own,    Hey  axe  ntadty  all 


But  it  is  not  neeeasai 
superiority  of  the  nei 
towns  in  this  country, 
vicinity  of  the  laxge  dries,! 
and  fine 
An  iiilrllirrni  i 


Mass.,  Mr.  Henry  &  Perltam, 


26         THE  KOAD  AND  THE  ROADSIDE. 

tion  of  the  old  and  the  new  system  in  that  town : 
"  Until  1877  the  old  highway  district  system,  common 
in  the  New  England  country  towns,  was  in  vogue  here. 
Eleven  highway  surveyors  were  chosen  annually  in  town- 
meeting,  who  had  charge  of  the  roads  in  their  respective 
districts ;  and  although  the  town  appropriated  money 
liberally  for  highway  repairs,  the  roads  seemed  to  be 
continually  growing  worse,  owing  to  the  superficial 
manner  in  which  the  repairs  were  made.  In  1877 
the  town  adopted  an  entirely  different  plan  for  doing 
the  work.  The  plan  was  to  choose  one  surveyor  for  the 
whole  town,  who  was  to  have  charge  of  all  the  roads, 
and  the  town  to  purchase  suitable  teams  and  implements 
to  be  kept  at  the  town  farm.  This  is  now  the  ninth  year 
in  which  this  system  has  been  in  practice,  and  the  result 
of  the  change  has  been  most  satisfactory.  The  advan- 
tages are  that  the  surveyor  is  chosen  for  his  especial 
fitness  for  the  work.  The  men  under  him  are  mostly 
employed  by  the  month  and  boarded  at  the  town  farm, 
where  the  teams  are  also  kept.  A  force  now  costing  the 
town  ten  dollars  per  day  will  accomplish  more  and  better 
work  in  one  week  than  would  be  ordinarily  accomplished 
by  a  surveyor  under  the  old  system  in  a  season.  And 
the  reason  is  obvious.  The  men  and  teams  are  accus- 
tomed to  the  work ;  the  best  implements  and  machinery 
are  employed,  road-scrapers  doing  the  work  where  the 
nature  of  the  soil  will  permit ;  and  what  is  still  more 
important,  the  work  is  directed  by  the  surveyor  to  the 
best  advantage.  In  the  winter  season  the  teams  break 
out  the  roads  after  heavy  snows,  and  in  fair  weather 


KEPAIRS.  27 

cart  gravel  on  to  the  roads  as  in  summer.  And  although 
we  have  an  extraordinary  length  of  road  to  support, — 
namely,  two  hundred  and  seventy-five  miles,  being  more 
by  twenty-five  miles  than  any  other  town  in  the  State, 
—  there  has  been  a  marked  and  continual  improvement 
in  their  condition. 

"  When  this  plan  was  first  presented  to  the  attention 
of  the  town,  it  met  with  sharp  opposition,  and  passed 
by  only  a  small  majority  ;  but  the  favor  with  which  it  is 
now  regarded  may  be  judged  by  the  fact  that  since  its 
adoption  it  has  met  with  almost  universal  approval,  and 
we  should  now  as  soon  think  of  going  back  to  the  school- 
district  system  or  to  support  the  churches  by  taxation 
as  of  returning  to  the  old  method  of  repairing  our 
roads." 

This  method  is  undoubtedly  better  than  the  old  dis- 
trict system ;  but  the  system  of  the  future  will  not  in- 
clude a  road-scraper  except  for  the  building  of  new  roads. 
Any  system  is  radically  defective  which  scrapes  the  dust 
and  worn-out  soil  of  the  gutters  or  the  turf  and  loam  of 
the  roadside  upon  the  road-bed.  Perhaps  this  kind  of 
repairing  is  better  than  none  in  many  localities ;  but  as 
civilization  advances  and  the  true  principles  of  road- 
making  become  better  known,  after  the  foundation  of  a 
road-bed  has  been  properly  established,  nothing  but 
good  road  material  will  ever  be  put  upon  it,  and  this 
will  be  put  there  from  time  to  time  as  needed  to  keep 
up  a  continual  good  condition  of  the  road. 


28         THE  ROAD  AND  THE  EOADSIDE. 


CHAPTEK  V. 

LAWS  RELATING  TO  THE  LAYING  OUT   OF  WAYS. 

NEW  roads  are  not  often  required  now  to  reach  and 
develop  new  tracts  of  land,  except  in  large  towns  and 
cities;  but  they  are  frequently  needed  to  shorten  dis- 
tances and  to  improve  grades.  Consequently  the  laws 
relative  to  the  laying  out,  maintenance,  and  use  of  high- 
ways are  of  personal  interest  to  every  citizen,  and  many 
are  also  interested  in  the  laws  relating  to  private  ways. 

The  public  have  a  right  to  lay  out  ways  for  purposes 
of  business,  amusement,  or  recreation,  as  to  markets,  to 
public  parks  or  commons,  to  places  of  historic  interest 
or  beautiful  natural  scenery.1  And  such  ways  may  be 
established  by  prescription,  by  dedication,  or  by  the  acts 
of  the  proper  public  authorities.  Twenty  years'  unin- 
terrupted use  by  the  public  will  make  a  prescriptive 
highway.  Many  of  the  old  roads  in  our  towns  and 
cities  have  become  public  thoroughfares  by  prescriptive 
use,  which  began  in  colonial  days,  and  perhaps  then  fol- 
lowed Indian  trails,  or  were  first  used  as  bridle-paths. 

When  the  owner  in  fee  of  land  gives  to  the  public  a 
right  of  passage  and  repassage  over  it,  and  his  gift  is 
accepted  by  the  public,  the  land  thus  travelled  over 

1  11  Allen,  530. 


LAWS   RELATING  TO   THE  LAYING  OUT  OF  WAYS.     29 

becomes  a  way  by  dedication.  The  dedication  may  be 
made  by  the  writing,  the  declaration,  or  by  the  acts  of 
the  owner.  It  must,  however,  clearly  appear  that  he 
intended  and  has  made  the  dedication ;  and  when  it  has 
been  accepted  by  the  public  it  is  irrevocable.  Formerly 
it  could  be  accepted  by  the  public  by  use,  or  by  some 
act  or  circumstance  showing  the  town's  assent  and  ac- 
quiescence in  such  dedication ;  but  now  no  city  or  town 
is  chargeable  for  such  dedicated  way  until  it  has  been 
laid  out  and  established  in  the  manner  provided  by  the 
statutes.1  It  was  formerly  thought  that  this  act  applied 
to  prescriptive  ways  as  well  as  to  dedicated  ways ;  but 
it  is  now  settled  that  it  applies  only  to  ways  by  dedica- 
tion, and  ways  by  prescription  are  not  affected  by  it.2 

The  proper  town  or  city  authorities  have  jurisdiction 
to  lay  out  or  alter  ways  within  the  limits  of  their  re- 
spective cities  or  towns,  and  to  order  specific  repairs 
thereon.  The  county  commissioners  have  also  juris- 
diction to  lay  out  public  ways,  the  termini  of  which  are 
exclusively  within  the  same  town;  and  they  are  also 
clothed  with  authority  to  lay  them  out  from  town  to 
town.  Hence  roads  may  be  either  town  ways  or  public 
highways.  When  the  proceedings  for  their  location  origi- 
nate with  the  town  or  city  officials,  they  are  town  ways ; 
and  when  the  proceedings  originate  with  the  county 
commissioners,  they  are  public  highways.3  Suppose  a 
new  road  is  wanted,  or  an  alteration  in  an  old  one  is 
desired,  within  the  limits  of  a  town,  a  petition  therefor 

1  Pub.  St.  c.  49,  §  94.  2  128  Mass.  63. 

8  7  Cush.  394. 


30          THE  ROAD  AND  THE  ROADSIDE. 

may  "be  presented  either  to  the  town  authorities  or  to 
the  county  commissioners.     If  the  proposed  road  is  not 
situated  entirely  within  the  limits  of  one  town  or  city, 
,  then  the  commissioners  alone  have  jurisdiction  in  the 
premises.     When  the  selectmen  or  road  commissioners 
of  a  town  decide  to  lay  out  a  new  road,  or  to  alter  an 
old  one,  their  doings  must  be  reported  and  allowed  at 
some  public  meeting  of  the  inhabitants  regularly  warned 
and  notified  therefor ;  but  while  the  inhabitants   are 
vested  with  the  right  of  approval,  they  have  no  right  to 
vote  that  the  selectmen  or  road  commissioners  shall  lay 
out  a  particular  way,  as  it  is  the  intention  of  the  statute 
that  these  officials  shall  exercise  their  own  discretion 
upon  the  subject.1    If  the  town  authorities  unreasonably 
refuse  or  neglect  to  lay  out  a  way,  or  if  the  town  unrea- 
sonably refuses  or  delays  to  approve  and  allow  such  way 
as  laid  out  or  altered  by  its  officials,  then  the  parties 
aggrieved  thereby  may,  at  any  time  within  one  year, 
apply  to  the  county  commissioners,  who  have  authority 
to  cause  such  way  to  be  laid  out  or  altered.     But  when 
a  petition  for  a  public  way  is  presented  in  the  first  in- 
stance to  the  county  commissioners,  or  when  the  matter 
is  brought  before  them  by  way  of  appeal,  their  decision 
on  the  question  of  the  public  necessity  and  convenience 
of  such  ^way  is  final,  and  from  it  there  is  no  appeal. 
If  damage  is  sustained  by  any  person  in  his  property 
by  the  laying  out,  alteration,  or  discontinuance  of  a  pub- 
lic way,  he  is  entitled  to  receive  just  and  adequate  dam- 
ages therefor,  to  be  assessed,  in  the  first  place,  by  the 
1  5  Pick.  492. 


LAWS  RELATING  TO  THE   LAYING  OUT  OF  WAYS.     31 

town  or  city  authorities  or  by  the  county  commis- 
sioners, and,  finally,  by  a  jury,  in  case  one  is  demanded 
by  him.  He  is  entitled  to  a  reasonable  time  to  take 
off  any  timber,  wood  or  trees,  which  may  be  upon  the 
land  to  be  taken ;  but  if  he  does  not  remove  the  same 
within  the  time  allowed,  he  is  deemed  to  have  relin- 
quished his  right  thereto.  In  estimating  the  damage  to 
the  land-owner  caused  by  the  laying  out  or  the  altera- 
tion of  a  public  way  over  his  land,  neither  the  city  nor 
town  authorities  nor  a  jury  are  confined  to  the  value 
of  the  land  taken.  He  is  also  entitled  to  the  amount 
of  the  damage  done  to  his  remaining  land  by  such  laying 
out  or  alteration.1  But  in  such  estimation  of  damages 
any  direct  or  peculiar  benefit  or  increase  of  value  accru- 
ing to  his  adjoining  land  is  to  be  allowed  as  a  better- 
ment, by  way  of  set-off;  but  not  any  general  benefit 
or  increase  of  value  received  by  him  in  common  with 
other  land  in  the  neighborhood.2 

The  cost  of  making  and  altering  ways,  including  dam- 
ages caused  thereby,  is  to  be  paid  by  the  city  or  town 
wherein  the  same  are  located,  provided  the  proceedings 
originate  with  the  town  or  city  authorities ;  but  when 
the  proceedings  originate  with  the  county  commission- 
ers, they  divide  the  cost  between  the  towns  and  the 
county  in  such  manner  as  they  think  to  be  just  and 
reasonable.3 

1  14  Gray,  214.  2  4  Gush.  291.  8  6  Met.  329. 


32         THE  ROAD  AND  THE  ROADSIDE. 


CHAPTER  VI. 

LAW  AS   TO  REPAIRS. 

AFTER  highways,  town-ways,  streets,  causeways,  and 
bridges  have  been  established,  they  are  to  be  kept  in 
such  repair  as  to  be  reasonably  safe  and  convenient  for 
travellers  at  all  seasons  of  the  year  at  the  expense  of 
the  town  or  city  in  which  they  are  situated. 

It  is  the  duty  of  each  town  to  grant  and  vote  such 
sums  of  money  as  are  necessary  for  repairing  the  public 
ways  within  its  borders ;  and  if  it  fails  to  do  so,  the 
highway  surveyors,  in  their  respective  districts,  may 
employ  persons,  as  directed  in  the  statutes,  to  repair  the 
roads,  and  the  persons  so  employed  may  collect  pay  for 
their  labor  of  the  town.  In  order  to  make  such  repairs, 
city  and  town  authorities  may  select  and  lay  out  land 
within  their  respective  limits  as  gravel  and  clay  pits 
from  which  may  be  taken  earth  and  gravel  necessary  for 
the  construction  and  repairs  of  streets  and  ways.1  And 
they  may  turn  the  surface  drainage  of  the  roads  upon 
the  land  of  the  adjoining  owners  without  liability.2 
But  no  highway  surveyor  has  a  right,  without  the 
written  approbation  of  the  selectmen,  to  cause  a  water- 
course, occasioned  by  the  wash  of  the  road,  to  be  so 
1  Pub.  St.  c.  49,  §  99.  2  13  Gray,  601. 


LAW  AS  TO  REPAIRS.  33 

conveyed  by  the  roadside  as  to  incommode  a  house,  a 
store,  shop,  or  other  building,  or  to  obstruct  a  person  in 
the  prosecution  of  his  business.1  Properly  authorized 
city  or  town  officers  may  trim  or  lop  off  trees  and  bushes 
standing  in  the  public  ways,  or  cut  down  and  remove 
such  trees ;  and  may  cause  to  be  dug  up  and  removed 
whatever  obstructs  such  ways,  or  endangers,  hinders, 
or  incommodes  persons  travelling  therein.2  Even  the 
boundaries  of  public  ways  are  so  well  guarded  that  when 
they  are  ascertainable  no  length  of  time  less  than  forty 
years  justifies  the  continuance  of  a  fence  or  building 
within  their  limits ;  but  the  same  may,  upon  the  pre- 
sentment of  a  grand  jury,  be  removed  as  a  nuisance.3 

It  is  so  important  that  the  public  ways  be  kept  free 
for  travel,  that  any  person  may  take  down  and  remove 
gates,  rails,  bars,  or  fences  upon  or  across  highways, 
unless  the  same  have  been  there  placed  for  the  purpose 
of  preventing  the  spreading  of  a  disease  dangerous  to 
the  public  health,  or  have  been  erected  or  continued  by 
the  license  of  the  selectmen  or  county  commissioners.4 
A  highway  surveyor  acting  within  the  scope  of  his  au- 
thority may  dig  up  and  remove  the  soil  within  the  limits 
of  the  public  ways  for  the  purpose  of  repairing  the  same, 
and  may  carry  it  from  one  part  of  the  town  to  another ; 6 
and  he  has  a  right  to  deposit  the  soil  thus  removed  on 
his  own  land,  if  that  is  the  best  way  of  clearing  the  road 
of  useless  material6 

i  Pub.  St.  c.  52,  §  12.  2  St.  1885,  c.  123. 

8  Pub.  St.  c.  54.  4  Pub.  St.  c.  54. 

6  125  Mass.  216.  a  128  Mass.  546. 


34         THE  ROAD  AND  THE  ROADSIDE. 

Though  the  law  is  imperative  that  the  roads  must  be 
kept  in  good  condition,  and  to  this  end  gives  municipal 
corporations  great  powers,  yet  let  no  one  who  is  not  a 
highway  surveyor  or  in  his  employ  imagine  that  he 
can  repair  a  road  not  on  his  own  land  with  impunity ; 
for  it  has  been  decided  that  if  an  unauthorized  person 
digs  up  the  soil  on  the  roadside  by  another  person's  land 
for  the  purpose  of  repairing  the  road,  he  is  a  trespasser 
and  liable  for  damages,  although  he  does  only  what  a 
highway  surveyor  might  properly  do.1  It  is  also  the 
duty  of  cities  and  towns  to  guard  with  sufficient  and 
suitable  railings  every  road  which  passes  over  a  bank, 
bridge,  or  along  a  precipice,  excavation,  or  deep  water ; 
and  it  makes  no  difference  whether  these  dangerous 
places  are  within  or  without  the  limits  of  the  road,  if 
they  are  so  imminent  to  the  line  of  public  travel  as  to 
expose  travellers  to  unusual  hazard.2  But  towns  are 
not  obliged  to  put  up  railings  merely  to  prevent  trav- 
ellers from  straying  out  of  the  highway,  where  there  is 
no  unsafe  place  immediately  contiguous  to  the  way.3 

The  roads  are  for  the  use  of  travellers,  and  a  city  or 
town  is  not  bound  to  keep  up  railings  strong  enough  for 
idlers  to  lounge  against  or  children  to  play  upon.4 

The  travelled  parts  of  all  roads  ought  to  be  wide 
enough  to  allow  of  the  ordinary  shyings  and  frights  of 
horses  with  safety,  for  shying  is  one  of  the  natural  habits 
of  the  animal;5  although  it  seems  that  switching  his 

i  8  Allen,  473.  2  13  Allen,  429. 

*  122  Mass.  389.  4  3  Allen,  374;  8  Allen,  237. 

6  100  Mass.  49. 


LAW   AS  TO  REPAIRS.  35 

tail  over  the  reins  is  not  a  natural  habit  of  the  animal, 
as  it  has  been  decided  that  if  a  horse  throws  his  tail 
over  the  reins  and  thereby  a  defect  in  the  road  is  run 
against,  no  damages  can  be  recovered.1 

1  98  Mass.  578. 


36         THE  EOAD  AND  THE  ROADSIDE. 


CHAPTER  VII. 

GUIDE-POSTS,  DRINKING-TROUGHS,  AND  FOUNTAINS. 

THE  statutes  undertake  to  provide  for  the  erection 
and  maintenance  of  guide-posts  at  suitable  places  on  the 
public  ways ;  but  a  person  has  to  travel  but  little  in 
many  of  the  towns  of  the  State  to  come  to  the  conclu- 
sion that  the  law  is  either  deficient  in  construction  or 
a  dead  letter  in  execution.  The  law  makes  it  incumbent 
upon  the  selectmen  or  road  commissioners  of  each  town 
to  submit  to  the  inhabitants,  at  every  annual  meeting, 
a  report  of  all  the  places  in  which  guide-posts  are 
erected  and  maintained  within  the  town,  and  of  all 
places  at  which,  in  their  opinion,  they  ought  to  be 
erected  and  maintained.  For  each  neglect  or  refusal  to 
make  such  report  they  shall  severally  forfeit  ten  dollars. 
After  the  report  is  made  the  town  shall  determine  the 
several  places  at  which  guide-posts  shall  be  erected  and 
maintained,  which  shall  be  recorded  in  the  town  rec- 
ords. A  town  which  neglects  or  refuses  to  determine 
such  places,  and  to  cause  a  record  thereof  to  be  made, 
shall  forfeit  five  dollars  for  every  month  during  which 
it  neglects  or  refuses  to  do  so. 

At  each  of  the  places  determined  by  the  town  there 
shall  be  erected,  unless  the  town  at  the  annual  meeting 


GUIDE-POSTS,  DRINKING-TROUGHS,  AND  FOUNTAINS.  37 

agrees  upon  some  suitable  substitute  therefor,  a  sub- 
stantial post  of  not  less  than  eight  feet  in  height,  near 
the  upper  end  of  which  shall  be  placed  a  board  or  boards, 
with  plain  inscription  thereon,  directing  travellers  to  the 
next  town  or  towns  and  informing  them  of  the  distance 
thereto. 

Every  town  which  neglects  or  refuses  to  erect  and 
maintain  such  guide-posts,  or  some  suitable  substitutes 
therefor,  shall  forfeit  annually  five  dollars  for  every 
guide-post  which  it  neglects  or  refuses  to  maintain.1 
These  forfeitures  can  be  recovered  either  by  indictment 
or  by  an  action  of  tort  for  the  benefit  of  the  county 
wherein  the  acts  of  negligence  or  refusal  occur ;  and  any 
interested  or  public-spirited  person  can  make  complaint 
of  such  negligence  or  refusal  to  the  superior  court,  or  to 
any  trial  justice,  police,  district  or  municipal  court,  hav- 
ing jurisdiction  of  the  matter.2 

The  selectmen  may  establish  and  maintain  such 
drinking-troughs,  wells,  and  fountains  within  the  public 
highways,  squares,  and  commons  of  their  respective 
towns,  as  in  their  judgment  the  public  necessity  and 
convenience  may  require,  and  the  towns  may  vote 
money  to  defray  the  expenses  thereof.3  But  the  vote  of  a 
town  instructing  the  selectmen  to  establish  a  watering- 
trough  at  a  particular  place  would  be  irregular  and 
void,  because  towns  in  their  corporate  capacity  have  not 
been  given  the  right  by  statute  to  construct  drinking- 
troughs  in  the  public  highways.  And  towns  would  not 

1  Pub.  St.  c.  53,  §§  1-5.         2  Pub.  St.  c.  217 ;  108  Mass.  140. 
3  Pub.  St.  c.  27,  §  50. 


38         THE  ROAD  AND  THE  ROADSIDE. 

be  liable  for  the  acts  of  the  selectmen  performed  in  pur- 
suance of  this  statute,  because  the  law  makes  the  select- 
men a  board  of  public  officers;  representing  the  general 
public,  and  not  the  agents  of  their  respective  towns. 
However,  if  the  inhabitants  of  a  town  should  construct 
a  drinking  trough  or  fountain  of  such  hideous  shape,  and 
paint  it  with  such  brilliant  color,  that  it  would  frighten 
an  ordinarily  gentle  and  well-broken  horse,  by  reason  of 
which  a  traveller  should  be  brought  in  contact  with  a 
defect  in  the  way  or  on  the  side  of  the  way,  and  thus 
injured,  the  town  might  be  held  liable  to  pay  damages.1 

It  is  my  purpose  to  state  what  the  law  is,  and  not  what 
it  ought  to  be ;  but  I  will  venture  the  suggestion  that  it 
would  not  be  an  unreasonable  hardship  on  towns  to  re- 
quire them  to  establish  and  maintain  suitable  watering- 
troughs  at  suitable  places,  and  it  would  be  a  merciful 
kindness  to  many  horses  which  now  frequently  have  to 
travel  long  distances  over  dusty  roads  in  summer  heat 
without  a  chance  to  get  a  swallow  of  water  from  a 
public  drinking-trough. 

1  125  Mass.  526. 


SHADE  TREES,  PARKS,  AND  COMMONS.       39 


CHAPTEE  VIII. 

SHADE  TREES,  PARKS,  AND  COMMONS. 

THE  law  of  the  Commonwealth  not  only  requires  the 
public  ways  to  be  kept  safe  and  convenient,  but  of  late 
years  statutes  have  been  passed  allowing  owners  of 
land,  improvement  societies,  cities  and  towns,  to  do 
something  to  beautify  the  roadsides  and  public  squares 
of  any  city  or  town.  A  city  or  town  may  grant  or  vote 
a  sum  not  exceeding  fifty  cents  for  each  of  its  ratable 
polls  in  the  preceding  year,  to  be  expended  in  planting, 
or  encouraging  the  planting  by  the  owners  of  adjoining 
real  estate,  of  shade  trees  upon  the  public  squares  or 
highways.1  Such  trees  may  be  planted  wherever  it  will 
not  interfere  with  the  public  travel  or  with  private 
rights,  and  they  shall  be  deemed  and  taken  to  be  the 
private  property  of  the  person  so  planting  them  or  upon 
whose  premises  they  stand.2 

Improvement  societies,  properly  organized  for  the 
purpose  of  improving  and  ornamenting  the  streets  and 
public  squares  of  any  city  or  town  by  planting  and  cul- 
tivating ornamental  trees  therein,  may  be  authorized  by 
any  town  to  use,  take  care  of,  and  control  the  public 

1  St.  1885,  c.  123. 

2  Pub.  St.  c.  54,  §  6. 


40         THE  ROAD  AND  THE  ROADSIDE. 

grounds  or  open  spaces  in  any  of  its  public  ways,  not 
needed  for  public  travel.  They  may  grade,  drain,  curb, 
set  out  shade  or  ornamental  trees,  lay  out  flower  plots, 
and  otherwise  improve  the  same ;  and  may  protect  their 
work  by  suitable  fences  or  railings,  subject  to  such 
directions  as  may  be  given  by  the  selectmen  or  road  com- 
missioners. And  any  person  who  wantonly,  maliciously, 
or  mischievously  drives  cattle,  horses,  or  other  animals, 
or  drives  teams,  carriages,  or  other  vehicles,  on  or  across 
such  grounds  or  open  spaces,  or  removes  or  destroys  any 
fence  or  railing  on  the  same,  or  plays  ball  or  other 
games  thereon,  or  otherwise  interferes  with  or  damages 
the  work  of  such  corporation,  is  subject  to  a  fine  not 
exceeding  twenty  dollars  for  each  offence,  for  the  benefit 
of  the  society.1 

It  is  also  a  legal  offence  for  any  one  wantonly  to  in- 
jure or  deface  a  shade  tree,  shrub,  rose,  or  other  plant  or 
fixture  of  ornament  or  utility  in  a  street,  road,  square, 
court,  park,  or  public  garden,  or  carelessly  to  suffer  a 
horse  or  other  beast  driven  by  or  for  him,  or  a  beast 
belonging  to  him  and  lawfully  on  the  highway,  to  break 
down  or  injure  a  tree,  not  his  own,  standing  for  use  or 
ornament  on  said  highway.2  And  no  one,  even  if  he  be 
the  owner  of  the  land,  has  the  right  to  cut  down  or  re- 
move an  ornamental  or  shade  tree  standing  in  a  public 
way,  without  first  giving  notice  of  his  intention  to  the 
municipal  authorities,  who  are  entitled  to  ten  days  to 
decide  whether  the  tree  can  be  removed  or  not.  And 

1  St.  1885,  c.  157. 

2  Pub.  St.  c.  54,  §§  7,  8. 


SHADE  TREES,  PAKKS,  AND  COMMONS.       41 

whoever  cuts  down  or  removes  or  injures  such  tree 
in  violation  of  the  law  shall  forfeit  not  less  than  five 
•nor  more  than  one  hundred  dollars  for  the  benefit  of  the 
city  or  town  wherein  the  same  stands.1 

1  Pub.  St.  c.  54,  §§  10,  11. 


42         THE  ROAD  AND  THE  ROADSIDE. 


CHAPTER  IX. 

PUBLIC  USE  OF  HIGHWAYS. 

AFTER  the  roads  are  ready  for  use  and  beautified  by 
shade  trees  and  green  parks  at  convenient  places,  we 
are  confronted  with  the  question,  How  are  they  to  be 
used  by  the  public  and  the  owners  of  adjoining  estates  ? 
We,  as  a  people,  are  not  only  continental  and  terrestrial 
travellers,  but  we  are  continually  passing  hither  and 
thither  over  the  public  ways  of  this  State,  and  conse- 
quently it  is  important  for  us  to  know  how  to  travel 
the  common  roads  in  a  legal  and  proper  manner. 

In  the  first  place,  every  one  who  travels  upon  a  public 
thoroughfare  is  bound  to  drive  with  due  care  and  discre- 
tion, and  to  have  an  ordinarily  gentle  and  well  trained 
horse,  with  harness  and  vehicle  in  good  roadworthy 
condition,  as  he  is  liable  for  whatever  damages  may  be 
occasioned  by  any  insufficiency  in  this  respect.1 

Another  duty  which  every  traveller  is  bound  to  ob- 
serve is  to  drive  at  a  moderate  rate  of  speed.  To  drive 
a  carriage  or  other  vehicle  on  a  public  way  at  such  a 
rate  or  in  such  a  manner  as  to  endanger  the  safety  of 
other  travellers,  or  the  inhabitants  along  the  road,  is  an 
indictable  offence  at  common  law,  and  amounts  to  a 
1  4  Gray,  178. 


PUBLIC  USE  OF  HIGHWAYS.  43 

breach  of  the  peace ;  and  in  case  any  one  is  injured  or 
damaged  thereby,  he  may  look  to  the  fast  driver  for  his 
recompense.  But  it  does  not  follow  that  a  man  may 
not  drive  a  well-bred  and  high-spirited  horse  at  a  rapid 
gait,  if  he  does  not  thereby  violate  any  ordinance  or  by- 
law of  a  town  or  city ;  for  it  has  been  held  that  it  cannot 
be  said,  as  matter  of  law,  that  a  man  is  negligent  who 
drives  a  high-spirited  and  lively-stepping  horse  at  the 
rate  of  ten  miles  an  hour  in  a  dark  night.1 

It  then  behooves  every  one  to  drive  with  care  and 
caution,  whether  he  is  going  fast  or  slow ;  and  it  also 
behooves  him  to  see  that  his  servants  drive  with  equal 
care  and  caution,  for  he  is  responsible  to  third  persons  for 
the  negligence  of  his  servants,  in  the  scope  of  their  em- 
ployment, to  the  same  extent  as  if  the  act  were  his  own, 
although  the  servants  disobey  his  express  orders.  If 
you  send  your  servant  upon  the  road  with  a  team,  with 
instructions  to  drive  carefully  and  to  avoid  coming  in 
contact  with  any  carriage,  but  instead  of  driving  care- 
fully he  drives  carelessly  against  a  carriage,  you  are 
liable  for  all  damages  resulting  from  the  collision  ;  and 
if  the  servant  acts  wantonly  or  mischievously,  causing 
thereby  additional  bodily  or  mental  injury,  such  wanton- 
ness or  mischief  will  enhance  the  damage  against  you.2 

You  may  think  this  a  hard  law ;  but  it  is  not  so  hard 
as  it  would  be  if  it  allowed  you  to  hire  ignorant,  wilful, 
and  incompetent  servants  to  go  upon  the  road  and  in- 
jure the  lives  and  property  of  innocent  people  without 
redress  save  against  the  servants,  who  perchance  might 
1  8  Allen,  522.  2  3  Cush.  300;  114  Mass.  518. 


44         THE  ROAD  AND  THE  ROADSIDE. 

be  financially  irresponsible.  It  should  however  be 
stated  in  this  connection  that  if  your  team  should  get 
away  from  you  or  your  servant,  without  any  fault  on 
your  or  his  part,  and  should  run  away  and  do  great  dam- 
age, by  colliding  with  other  teams,  or  by  running  over 
people  on  foot,  you  would  not  be  held  responsible,  as  in 
law  it  would  be  regarded  as  an  inevitable  accident. 
Thus,  if  your  horse  should  get  scared  by  some  sudden 
noise  or  frightful  object  by  the  wayside,  or  through  his 
natural  viciousness  of  which  you  were  ignorant,  or  by 
some  means  should  get  unhitched  after  you  had  left  him 
securely  tied,  and  in  consequence  thereof  should  plunge 
the  shaft  of  your  wagon  into  some  other  man's  horse,  or 
should  knock  down  and  injure  a  dozen  people,  you 
would  not  be  liable,  because  the  injury  resulted  from 
circumstances  over  which  you  had  no  control1 

1  1  Addison  on  Torts,  466. 


THE  LAW  OF  THE  BOAD."  45 


CHAPTER  X. 


THERE  are  certain  rules  applicable  to  travellers  upon 
public  ways,  which  are  so  important  that  everybody 
ought  to  know  and  observe  them.  The  law  relative 
thereto  is  known  as  "  the  law  of  the  road."  These  rules 
relate  to  the  meeting,  passing,  and  conduct  of  teams  on 
the  road ;  and  it  is  more  important  that  there  should  be 
some  well  established  and  understood  rules  on  the  sub- 
ject than  what  the  rules  are.  In  England  the  rules  are 
somewhat  different,  and  some  of  them  are  the  reverse 
of  what  they  are  in  this  country.  But  the  rules  and 
the  law  relating  thereto  in  this  country  are  about  the 
same  in  every  State  of  the  Union.  Our  statutes  provide 
that  when  persons  meet  each  other  on  a  bridge  or  road, 
travelling  with  carriages  or  other  vehicles,  each  person 
shall  seasonably  drive  his  carriage  or  other  vehicle  to 
the  right  of  the  middle  of  the  travelled  part  of  such 
bridge  or  road,  so  that  their  respective  carriages  or  other 
vehicles  may  pass  each  other  without  interference  ;  that 
one  party  passing  another  going  in  the  same  direction 
must  do  so  on  the  left-hand  side  of  the  middle  of  the 
road,  and  if  there  is  room  enough,  the  foremost  driver 
must  not  wilfully  obstruct  the  road.1 
1  Pub.  St.  c.  93. 


46         THE  ROAD  AND  THE  ROADSIDE. 

Although  these  are  statutory  rules,  yet  they  are  not 
inflexible  in  every  instance,  as  on  proper  occasions  they 
may  be  waived  or  reversed.  They  are  intended  for  the 
use  of  an  intelligent  and  civilized  people;  and  in  the 
crowded  streets  of  villages  and  cities,  situations  or  cir- 
cumstances may  frequently  arise  when  a  deviation  will 
not  only  be  justifiable  but  absolutely  necessary.  One 
may  always  pass  on  the  left  side  of  a  road,  or  across  it, 
for  the  purpose  of  stopping  on  that  side,  if  he  can  do  so 
without  interrupting  or  obstructing  a  person  lawfully 
passing  on  the  other  side.1  And  if  the  driver  of  a  car- 
riage on  the  proper  side  of  the  road  sees  a  horse  coming 
furiously  on  the  wrong  side  of  the  road,  it  is  his  duty  to 
give  way  and  go  upon  the  wrong  side  of  the  road,  if  by 
so  doing  he  can  avoid  an  accident.2  But  in  deviating 
from  the  "  law  of  the  road,"  one  must  be  able  to  show 
that  it  was  the  proper  and  reasonable  thing  to  do  under 
the  circumstances,  or  else  he  will  be  answerable  for  all 
damages ;  for  the  law  presumes  that  a  party  who  is  vio- 
lating an  established  rule  of  travelling  is  a  wrongdoer.3 
Of  course  a  person  on  the  right  side  of  the  road  has  no 
right  to  run  purposely  or  recklessly  into  a  trespasser, 
simply  because  he  has  wrongfully  given  him  the  oppor- 
tunity to  receive  an  injury,  and  then  turn  round  and 
sue  for  damages  arising  from  his  own  foolhardiness  and 
devil-may-care  conduct.4 

Every  one  seeking  redress  at  law  on  account  of  an 
accident  must  be  able  to  show  that  he  himself  was  at 

1  Angell  on  Highways,  §  336.  *  121  Mass.  216. 

2  Shear.  &  Red.  on  Negligence,  §  309.  4  12  Met.  415. 


47 

the  time  in  the  exercise  of  ordinary  care  and  precaution, 
and  it  is  not  enough  for  him  to  show  that  somebody  else 
was  violating  a  rule  of  law.  When  the  road  is  unoccu- 
pied a  traveller  is  at  liberty  to  take  whichever  side  of 
the  road  best  suits  his  convenience,  as  he  is  only  re- 
quired "seasonably  to  drive  to  the  right"  when  he 
meets  another  traveller ;  but  if  parties  meet  on  the 
sudden,  and  an  injury  results,  the  party  on  the  wrong 
side  of  the  road  is  responsible,  unless  it  clearly  appears 
that  the  party  on  the  proper  side  has  ample  means  and 
opportunity  to  prevent  it1 

Where  there  is  occasion  for  one  driver  to  pass  another 
going  in  the  same  direction,  the  foremost  driver  may 
keep  the  even  tenor  of  his  way  in  the  middle  or  on 
either  side  of  the  road,  provided  there  is  sufficient  room 
for  the  rear  driver  to  pass  by ;  but  if  there  is  not  suffi- 
cient room,  it  is  the  duty  of  the  foremost  driver  to  afford 
it,  by  yielding  an  equal  share  of  the  road,  if  that  be 
practicable ;  but  if  not,  then  the  object  must  be  deferred 
till  the  parties  arrive  at  ground  more  favorable  to  its 
accomplishment.  If  the  leading  traveller  then  wilfully 
refuses  to  comply,  he  makes  himself  liable,  criminally, 
to  the  penalty  imposed  by  the  statute,  and  answerable 
at  law  in  case  the  rear  traveller  suffers  damage  in  con- 
sequence of  the  delay.  There  being  no  statute  regula- 
tions as  to  the  manner  in  which  persons  should  drive 
when  they  meet  at  the  junction  of  two  streets,  the  rule 
of  the  common  law  applies,  and  each  person  is  bound 

i  10  Gush.  495;  3  Carr.  &  Payne,  554;  Angell  on  Carriers, 
§  555. 


48         THE  ROAD  AND  THE  ROADSIDE. 

to  use  due  and  reasonable  care,  adapted  to  the  circum- 
stances and  place.1 

By  the  "  travelled  part "  of  the  road  is  intended  that 
part  which  is  usually  wrought  for  travelling,  and  not 
any  track  which  may  happen  to  be  made  in  the  road  by 
the  passing  of  vehicles ;  but  when  the  wrought  part  of 
the  road  is  hidden  by  the  snow,  and  a  path  is  beaten 
and  travelled  on  the  side  of  the  wrought  part,  persons 
meeting  on  such  beaten  and  travelled  path  are  required 
to  drive  their  vehicles  to  the  right  of  the  middle  of  such 
path.2  Many  drivers  of  heavily  loaded  vehicles  seem 
to  think  that  all  lightly  loaded  ones  should  turn  out  and 
give  them  all  the  travelled  part  of  the  road.  No  doubt 
a  lightly  loaded  vehicle  can  often  turn  out  with  less  in- 
convenience than  a  heavily  loaded  one,  and  generally 
every  thoughtful  and  considerate  driver  of  a  light  vehicle 
is  willing  to,  and  does,  give  the  heavy  vehicle  more  than 
half  the  road  on  every  proper  occasion ;  but  the  driver 
of  the  heavy  vehicle  ought  to  understand  that  it  is  done 
out  of  courtesy  to  himself  and  consideration  for  his 
horses,  and  not  because  it  is  required  by  any  rule  of 
law.  The  statute  law  of  the  road  in  this  State  makes 
no  distinction  between  the  lightly  and  the  heavily  loaded 
vehicle.  Both  alike  are  required  to  pass  to  the  right  of 
the  travelled  part  of  the  road.  In  case  of  accident  the 
court  would  undoubtedly  take  into  consideration  the 
size  and  load  of  each  vehicle,  as  bearing  upon  the  ques- 
tion of  the  conduct  of  the  drivers  under  the  circum- 
stances, and  their  responsibility  would  be  settled  in 
1  12  Allen,  81.  2  4  Pick.  125;  8  Met.  213. 


"THE  LAW   OF  THE   ROAD."  49 

accordance  with  "the  law  of  the  road/'  modified  and 
possibly  reversed  by  the  situation  of  the  parties  and  the 
circumstances  surrounding  them  at  the  time.1 

A  traveller  in  a  common  carriage  may  use  the  track 
of  a  street  railway  when  the  same  is  not  in  use  by  the 
company ;  but  the  company  is  entitled  to  the  unrestricted 
use  of  their  rails  upon  all  proper  occasions,  and  then 
such  traveller  must  keep  off  their  track,  or  else  he  ren- 
ders himself  liable  to  indictment  under  the  statutes  of 
the  State.2 

i  111  Mass.  360.          2  Pub.  St.  c.  113,  §  37 ;  7  Allen,  573. 


50  THE  BO  AD   AND  THE  ROADSIDE. 


CHAPTER  XL 

EQUESTRIANS  AND  PEDESTRIANS. 

IN  England  "  the  law  of  the  road  "  applies  as  well  to 
equestrians  as  to  travellers  by  carriage,  and  I  can  see 
no  good  reason  why  it  should  not  do  so  here.  The 
statutes  are  silent  on  the  subject,  and  I  cannot  find  that 
our  Supreme  Court  has  ever  had  occasion  to  pass  upon 
the  question ;  but  it  has  been  decided  in  some  of  the 
States  that  when  a  traveller  on  horseback  meets  another 
equestrian  or  a  carriage,  he  may  exercise  his  own  no- 
tions of  prudence,  and  turn  either  to  the  right  or  to  the 
left  at  his  option.1  By  common  consent  and  immemorial 
usage  an  equestrian  is  expected  to  yield  the  road,  or  a 
good  share  of  it,  to  a  wagon  or  other  vehicle.  It  has 
been  decided  in  Pennsylvania  that  if  he  has  a  chance  to 
turn  out  and  refuses  to  do  so,  and  his  steed  or  himself 
is  injured  by  a  collision,  he  is  remediless.2 

It  is  clear  that  the  statute  law  of  the  road  in  this  State 
is  not  applicable  to  people  on  horseback,  as  it  is  ex- 
pressly limited  to  carriages  or  other  vehicles,  and 
therefore  equestrians  are  amenable  only  to  the  common 
law  of  the  land.  By  this  law  they  are  required  to  ride 
on  the  public  ways  with  due  care  and  precaution,  and 
1  24  Wend.  465.  2  23  Penn.  St.  196. 


EQUESTRIANS  AND  PEDESTRIANS.  51 

to  exercise  reasonably  good  judgment  on  every  occasion, 
under  all  the  attendant  circumstances.  When  they  meet 
wagons,  whether  heavily  loaded  or  not,  they  ought  to 
yield  as  much  of  the  road  as  they  can  conveniently,  — 
certainly  more  than  half,  as  they  do  not  need  that  much 
of  the  road  to  pass  conveniently,  —  but  when  they  meet 
a  vehicle  in  the  form  of  a  bicycle  there  seems  to  be  no 
good  reason  why  they  should  yield  more  than  half  the 
road.  For  the  convenience  of  themselves  and  the  public 
at  large,  on  meeting  vehicles  or  each  other,  they  ought 
to  pass  to  the  right,  as  by  adopting  the  statute  law  of 
the  road  in  this  respect  order  is  promoted  and  confusion 
avoided. 

A  public  thoroughfare  is  a  way  for  foot-passengers  as 
well  as  carriages,  and  a  person  has  a  right  to  walk  on 
the  carriage-way  if  he  pleases ;  but,  as  Chief  Justice 
Denman  once  remarked,  "  he  had  better  not,  especially 
at  night,  when  carriages  are  passing  along."1  How- 
ever, all  persons  have  an  undoubted  right  to  walk  on 
the  beaten  track  of  a  road,  if  it  has  no  sidewalk,  even  if 
infirm  with  age  or  disease,  and  are  entitled  to  the  ex- 
ercise of  reasonable  care  on  the  part  of  persons  driving 
vehicles  along  it.  If  there  is  a  sidewalk  which  is  in 
bad  condition,  or  obstructed  by  merchandise  or  other- 
wise, then  the  foot-passenger  has  a  right  to  walk  on  the 
road  if  he  pleases.  But  it  should  be  borne  in  mind  that 
what  is  proper  on  a  country  road  might  not  be  in  the 
crowded  streets  of  a  city.  In  law  every  one  is  bound 
to  regulate  his  conduct  to  meet  the  situations  in  which 
1  5  Carr.  &  Payne,  407. 


52          THE  ROAD  AND  THE  ROADSIDE. 

he  is  placed,  and  the  circumstances  around  him  at  the 
time.  A  person  infirm  with  age  or  disease  or  afflicted 
with  poor  eyesight  should  always  take  extraordinary 
precaution  in  walking  upon  the  road.1  Thus,  a  man 
who  traverses  a  crowded  thoroughfare  with  edged  tools 
or  bars  of  iron  must  take  especial  care  that  he  does  not 
cut  or  bruise  others  with  the  things  he  carries.  Such 
a  person  would  be  bound  to  keep  a  better  lookout  than 
the  man  who  merely  carried  an  umbrella ;  and  the  man 
who  carried  an  umbrella  would  be  bound  to  take  more 
care  when  walking  with  it  than  a  person  who  had 
nothing.2 

Footmen  have  a  right  to  cross  a  highway  on  every 
proper  occasion,  but  when  convenient  they  should  pass 
upon  cross-walks,  and  in  so  doing  should  look  out  for 
teams ;  for  it  is  as  much  their  duty,  on  crossing  a  road, 
to  look  out  for  teams,  as  it  is  the  duty  of  the  drivers  of 
teams  to  be  vigilant  in  not  running  over  them.  "  The 
law  of  the  road  "  as  to  the  meeting  of  vehicles  does  not 
apply  to  them.  They  may  walk  upon  whichever  side 
they  please,  and  turn,  upon  meeting  teams,  either  to  the 
right  or  to  the  left,  at  their  option,  but  it  is  their  duty 
to  yield  the  road  to  such  an  extent  as  is  necessary  and 
reasonable;  and  if  they  walk  in  the  beaten  track  or 
cross  it  when  teams  are  passing  along,  they  must  use 
extraordinary  care  and  caution  or  they  will  be  remedi- 
less in  case  of  injury  to  themselves.  They  may  travel 
on  the  Lord's  day  for  all  purposes  of  necessity  or  char- 
ity ;  and  they  may  also  take  short  walks  in  the  public 
1  1  Allen,  180.  2  1  Addison  on  Torts,  §  480. 


EQUESTRIANS  AND   PEDESTRIANS.  53 

highway  on  Sundays,  simply  for  exercise  and  to  take 
the  air,  and  even  to  call  to  see  friends  on  such  walks, 
without  liability  to  punishment  therefor  under  the  stat- 
utes for  the  observance  of  the  Lord's  day,  and  they  can 
recover  damages  for  injuries  wrongfully  sustained  while 
so  walking.1 

1  14  Allen,  475 ;  Barker  v.  Worcester,  139  Mass.  74. 


54          THE  ROAD  AND  THE  ROADSIDE. 


CHAPTER   XII. 

OMNIBUSES,   STAGES,  AND  HORSE-CARS. 

NEARLY  every  one  has  occasion,  more  or  less  often, 
to  travel  over  the  public  ways  in  the  coaches  of  pas- 
senger carriers.  Whoever  undertakes  to  carry  passen- 
gers and  their  baggage  for  hire  from  place  to  place  is 
bound  to  use  the  utmost  care  and  diligence  in  provid- 
ing safe  and  suitable  coaches,  harnesses,  horses,  and 
coachmen,  in  order  to  prevent  such  injuries  as  human 
care  and  foresight  can  guard  against. 

If  an  accident  happens  from  a  defect  in  the  coach 
or  harness  which  might  have  been  discovered  and  rem- 
edied upon  careful  and  thorough  examination,  such 
accident  must  be  ascribed  to  negligence,  for  which 
the  owner  is  liable  in  case  of  injury  to  a  passenger 
happening  by  reason  of  such  accident. 

On  the  other  hand,  where  the  accident  arises  from  a 
hidden  and  internal  defect,  which  careful  and  thorough 
examination  would  not  disclose,  and  which  could  not 
be  guarded  against  by  the  exercise  of  sound  judgment 
and  the  most  vigilant  oversight,  then  the  proprietor 
is  not  liable  for  the  injury,  but  the  misfortune  must 
be  borne  by  the  sufferer  as  one  of  that  class  of  injuries 


OMNIBUSES,  STAGES,  AND  HORSE-CARS.  55 

for  which  the  law  can  afford  no  redress  in  the  form 
of  a  pecuniary  recompense. 

If  a  passenger,  in  peril  arising  from  an  accident  for 
which  the  proprietors  are  responsible,  is  in  so  danger- 
ous a  situation  as  to  render  his  leaping  from  the  coach 
an  act  of  reasonable  precaution,  and  he  leaps  there- 
from and  breaks  a  limb,  the  proprietors  are  answerable 
to  him  in  damages,  though  he  might  safely  have  retained 
his  seat.1 

When  the  proprietors  of  stages  or  street-car  coaches, 
which  are  already  full  and  overloaded,  stop  their  coaches, 
whether  at  the  signal  or  not  of  would-be  passengers, 
and  open  the  doors  for  their  entrance,  they  must  be 
considered  as  inviting  them  to  ride,  and  thereby  assuring 
them  that  their  passage  will  be  a  safe  one,  at  least  so 
far  as  dependent  upon  the  exercise  of  reasonable  and 
ordinary  care,  diligence,  and  skill,  on  their  part,  in  driv- 
ing and  managing  their  horses  and  coaches ;  and,  in 
fact,  they  are  rather  to  be  held  responsible  for  such 
increased  watchfulness  and  solicitous  care,  skill,  and 
attention,  as  the  crowded  condition  of  the  vehicle 
requires.  If,  under  such  circumstances,  a  passenger 
is  thrown  out  of  or  off  the  coach  by  its  violent  jerk 
at  starting  or  stopping,  or  in  any  other  way  through 
the  negligence  of  the  proprietors  or  their  agents,  he 
may  hold  them  liable  for  his  injuries.2  A  passenger 
must  pay  his  fare  in  advance,  if  demanded,  otherwise 
he  may  have  to  pay  a  fine  for  evading  fare ;  and  if 
he  is  riding  free,  the  proprietors  are  not  responsible, 
1  9  Met.  1.  2  103  Mass.  391. 


56         THE  ROAD  AND  THE  ROADSIDE. 

except  for  gross  negligence  ;  and  he  must  also  properly 
and  securely  pack  his  baggage,  if  he  expects  to  recover 
damages  in  case  of  loss.  A  mail-coach  is  protected  by 
act  of  Congress  from  obstructions,  but  is  subject  in 
all  other  respects  to  "  the  law  of  the  road." l 

If  the  proprietors  of  coaches  used  for  the  common  car- 
riage of  persons  are  guilty  of  gross  carelessness  or 
neglect  in  the  conduct  and  management  of  the  same 
while  in  such  use,  they  are  liable  to  a  fine  not  exceed- 
ing five  thousand  dollars,  or  to  imprisonment  not  exceed- 
ing three  years.2  And  if  a  driver  of  a  stage-coach  or 
other  vehicle  for  the  conveyance  of  passengers  for  hire, 
when  a  passenger  is  within  or  upon  such  coach  or 
vehicle,  leaves  the  horses  thereof  without  some  suit- 
able person  to  take  the  charge  and  guidance  of  them, 
or  without  fastening  them  in  a  safe  and  prudent  man- 
ner, he  may  be  imprisoned  two  months  or  fined  fifty 
dollars.8 

1  1  Watts,  Pa.  360.  2  Pub.  St.  c.  202,  §  34. 

•  Pub.  St.  c.  202,  §  35. 


PURPOSES   FOE  WHICH  HIGHWAYS  MAY  BE  USED.     57 


CHAPTER    XIH. 

PURPOSES  FOR  WHICH  HIGHWAYS  MAY  BE  USED. 

As  before  intimated,  the  public  ways  are  mainly 
for  the  use  of  travellers ;  but  in  the  progress  of  civiliza- 
tion it  has  become  convenient  and  necessary  to  use 
them  for  other  purposes  of  a  public  nature.  It  is  the 
great  merit  of  the  common  law,  that  while  its  funda- 
mental principles  remain  fixed  from  generation  to  gen- 
eration, yet  they  are  generally  so  comprehensive  and 
so  well  adapted  to  new  institutions  and  conditions  of 
society,  new  modes  of  commerce,  new  usages  and  prac- 
tices, that  they  are  capable  of  application  to  every  phase 
of  society  and  business  life.  Time  and  necessity,  as 
well  as  locality,  are  important  elements  in  determining 
the  character  of  any  particular  use  of  a  public  way. 
Many  public  ways  are  now  used  for  gas,  water-pipes, 
and  sewers,  because  the  public  health  and  convenience 
are  subserved  by  such  use.  They  are  also  used  for  the 
transmission  of  intelligence  by  electricity,  and  the  post- 
boy and  the  mail-coach  are  disappearing. 

The  horse-railroad  was  deemed  a  new  invention; 
but  it  was  held  that  a  portion  of  the  road  might  well  be 
1  35  N.  H.  257. 


58         THE  KOAD  AND  THE  EOADSIDE. 

set  aside  for  it,  although  the  rights  of  other  travellers 
to  some  extent  were  limited  by  the  privileges  necessary 
for  its  use.1 

And  now  motor  cars  and  elevated  railroads  are  mak- 
ing their  appearance  in  the  centres  of  civilized  life,  and 
the  bicycle  and  tricycle  are  familiar  objects  on  all  the 
great  thoroughfares.  Should  human  ingenuity  discover 
any  new  modes  of  conveying  persons  and  property  over 
the  public  ways,  or  of  transmitting  intelligence  along 
the  same,  which  should  prove  convenient  to  the  every- 
day life  of  humanity,  no  doubt  the  highway  law  will 
be  found  applicable  to  all  the  needs  of  advancing  civ- 
ilization. The  underlying  principle  of  the  law  is  that 
every  person  may  use  the  highway  to  his  own  best  ad- 
vantage, but  with  a  just  regard  to  the  like  rights  of 
others.  The  law  does  not  specify  what  kind  of  animals 
or  vehicles  are  to  be  allowed  upon  the  road,  but  leaves 
every  case  to  be  decided  as  it  shall  arise,  in  view  of  the 
customs  and  necessities  of  the  people  from  time  to  time. 
All  persons  may  lawfully  travel  upon  the  public  ways 
with  any  animal  or  vehicle  which  is  suitable  for  a  way 
prepared  and  intended  to  afford  the  usual  and  reasonable 
accommodations  needful  to  the  requirements  of  a  people 
in  their  present  state  of  civilization ;  but  if  any  person 
undertakes  to  use  or  travel  upon  the  highway  in  an  un- 
usual or  extraordinary  manner,  or  with  animals,  vehicles, 
or  freight  not  suitable  or  adapted  to  a  way  opened  and 
prepared  for  the  public  use,  in  the  common  intercourse 
of  society,  and  in  the  transaction  of  usual  and  ordinary 
1  136  Mass.  75. 


PURPOSES  FOR  WHICH  HIGHWAYS   MAY  BE  USED.    59 

business,  he  then  takes  every  possible  risk  of  loss  and 
damage  upon  himself.1 

If  a  party  leads  a  bull  or  other  animal  through  a  pub- 
lic way  without  properly  guarding  and  restraining  the 
same,  and  for  want  of  such  care  and  restraint  people 
rightfully  on  the  way  and  using  due  care  are  injured, 
the  owner  of  the  animal  is  responsible,  because  under 
such  circumstances  he  is  bound  to  use  the  utmost  care 
and  diligence,  especially  in  villages  and  cities,  to  avoid 
injuries  to  people  on  the  road.2  So,  if  a  man  goes  upon 
the  highway  with  a  vehicle  of  such  peculiar  and  unusual 
construction,  or  which  is  operated  in  such  a  manner,  as 
to  frighten  horses  and  to  create  noise  and  confusion  on 
the  road,  he  is  guilty  of  an  indictable  offence  and  an- 
swerable in  damages  besides.  An  ycleped  velocipede  in 
the  road  has  been  held  in  Canada  to  be  a  nuisance,  and 
its  owner  was  indicted  and  found  guilty  of  a  criminal 
offence.3  In  England  a  man  who  had  taken  a  traction 
steam-engine  upon  the  road  was  held  liable  to  a  party 
who  had  suffered  damages  by  reason  of  his  horses  being 
frightened  by  it.4  It  has  been  held  to  be  a  nuisance  at 
common  law  to  carry  an  unreasonable  weight  on  a  high- 
way with  an  unusual  number  of  horses.5  And  so  it  is 
a  nuisance  for  a  large  number  of  persons  to  assemble  on 
or  near  a  highway  for  the  purpose  of  shouting  and 
making  a  noise  and  disturbance;  and  likewise  it  is  a 
nuisance  for  one  to  make  a  large  collection  of  tubs  in 

1  14  Gray,  242.  2  106  Mass.  281 ;  126  Mass.  506. 

8  30  Q.  B.  Ont.  41.  *  2  F.  &  F.  229. 

6  3  Salk.  183. 


60          THE  ROAD  AND  THE  ROADSIDE. 

the  road,  or  to  blockade  the  way  by  a  large  number  of 
logs,  cattle,  or  wagons ;  for,  as  Lord  Ellenborough  once 
said,  the  king's  highway  is  not  to  be  used  as  a  stable  or 
lumber  yard. 

Towns  and  cities  have  authority  to  make  such  by-laws 
regulating  the  use  and  management  of  the  public  ways 
within  their  respective  limits,  not  repugnant  to  law,  as 
they  shall  judge  to  be  most  conducive  to  their  welfare.1 
They  may  make  such  by-laws  to  secure,  among  other 
things,  the  removal  of  snow  and  ice  from  sidewalks  by 
the  owners  of  adjoining  estates  ;  to  prevent  the  pastur- 
ing of  cattle  or  other  animals  in  the  highways ;  to  regu- 
late the  driving  of  sheep,  swine,  and  neat  cattle  over  the 
public  ways ;  to  regulate  the  transportation  of  the  offal 
of  slaughtered  cattle,  sheep,  hogs,  and  other  animals 
along  the  roads;  to  prohibit  fast  driving  or  riding  on 
the  highways  ;  to  regulate  travel  over  bridges  ;  to  regu- 
late the  passage  of  carriages  or  other  vehicles,  and  sleds 
used  for  coasting,  over  the  public  ways ;  to  regulate  and 
control  itinerant  musicians  who  frequent  the  streets  and 
public  places ;  and  to  regulate  the  moving  of  buildings 
in  the  highways.  Many  people  are  inclined  to  make 
the  highway  the  receptacle  for  the  surplus  stones  and 
rubbish  around  their  premises,  and  to  use  the  wayside 
for  a  lumber  and  wood  yard ;  and  some  farmers  are  in 
the  habit  of  supplying  their  hog-pens  and  barn  cellars 
with  loam  and  soil  dug  out  of  the  highway. 

Again,  some  highway  surveyors  have  very  little  taste 
for  rural  beauty,  and  show  very  poor  judgment,  and 
1  Pub.  St.  c.  27,  §  15,  andc.  53;  97  Mass.  221. 


PURPOSES   FOR  WHICH  HIGHWAYS  MAY  BE   USED.    61 

perhaps  now  and  then  a  little  spite,  in  ploughing  up  the 
green  grass  by  the  roadside  and  sometimes  in  front  of 
houses.  These  evils  can  be  remedied  by  every  town 
which  will  pass  suitable  by-laws  upon  the  subject  and 
see  that  they  are  enforced.  Such  by-laws  might  pro- 
vide that  no  one  should  be  allowed  to  deposit  within 
the  limits  of  the  highway  any  stones,  brush,  wood,  rub- 
bish, or  other  substance  inconvenient  to  public  travel ; 
that  no  one  should  be  permitted  to  dig  up  and  carry 
away  any  loam  or  soil  within  the  limits  of  the  high- 
way ;  and  that  no  highway  surveyor  should  be  allowed 
to  dig  or  plough  up  the  greensward  in  front  of  any 
dwelling-house,  or  other  building  used  in  connection 
therewith,  without  the  written  direction  or  consent  of 
the  selectmen. 


62         THE  KOAD  AND  THE  ROADSIDE. 


CHAPTEK  XIV. 

USE  OF  HIGHWAYS  BY  ADJOINING  OWNERS. 

THE  owner  of  land  adjoining  a  highway  ordinarily 
owns  to  the  middle  of  the  road ;  and  while  he  has  the 
same  rights  as  the  public  therein,  he  also  has,  in  addi- 
tion thereto,  certain  other  rights  incident  to  the  owner- 
ship of  the  land  over  which  the  road  passes.  When 
land  is  taken  for  a  highway,  it  is  taken  for  all  the  pres- 
ent and  prospective  purposes  for  which  a  public  thor- 
oughfare may  properly  be  used,  and  the  damages  to  the 
owner  of  the  land  are  estimated  with  reference  to  such 
use ;  but  the  land  can  be  used  for  no  other  purpose,  and 
when  the  servitude  ceases  the  land  reverts  to  him  free 
from  encumbrance.  During  the  continuance  of  the  ser- 
vitude he  is  entitled  to  use  the  land,  subject  to  the 
easement,  for  any  and  all  purposes  not  incompatible 
with  the  public  enjoyment.  If  the  legislature  author- 
izes the  addition  of  any  new  servitude,  essentially  dis- 
tinct from  the  ordinary  use  of  a  highway,  like  an  elevated 
railroad,  then  the  land-owner  is  entitled  to  additional 
compensation ;  for  it  cannot  be  deemed,  in  law,  to  have 
been  within  the  contemplation  of  the  parties,  at  the 
time  of  the  laying  out  of  the  road,  that  it  might  be  used 
for  such  new  and  additional  purposes.  It  has  been  held 


USE  OF  HIGHWAYS  BY  ADJOINING  OWNERS.          63 

in  New  York,  Illinois,  and  some  of  the  United  States 
circuit  courts,  that  the  use  of  a  highway  for  a  telegraph 
line  will  entitle  such  owner  to  additional  compensation ; 
but  in  the  recent  case  of  Pierce  v.  Drew  l  the  majority 
of  our  Supreme  Court  decided  that  the  erection  of  a 
telegraph  line  is  not  a  new  servitude  for  which  the 
land-owner  is  entitled  to  additional  compensation. 

A  minority  of  the  court,  in  an  able  argument,  main- 
tained that  the  erection  of  telegraph  and  telephone 
posts  and  wires  along  the  roads,  fitted  with  cross-beams 
adapted  for  layer  after  layer  of  almost  countless  wires, 
which  necessitate  to  some  extent  the  destruction  of 
trees  along  the  highways  or  streets,  the  occupation  of 
the  ground,  the  filling  of  the  air,  the  interference  with 
access  to  or  escape  from  buildings,  the  increased  diffi- 
culty of  putting  out  fires,  the  obstruction  of  the  view, 
the  presentation  of  unsightly  objects  to  the  eye,  and  the 
creation  of  unpleasant  noises  in  the  wind,  is  an  actual 
injury  to  abutting  land  along  the  line,  and  constitutes  a 
new  and  increased  servitude,  for  which  the  land-owner 
is  entitled  to  a  distinct  compensation.  After  the  ren- 
dering of  the  majority  decision,  the  legislature  very 
promptly  passed  a  law  allowing  an  owner  of  land  abut- 
ting upon  a  highway  along  which  telegraph  or  telephone, 
electric  light  or  electric  power,  lines  shall  be  constructed, 
to  recover  damages  to  the  full  extent  of  the  injuries  to 
his  property,  provided  he  applies,  within  three  months 
after  such  construction,  to  the  mayor  and  aldermen  or 
selectmen  to  assess  and  appraise  his  damage.2 

1  136  Mass.  75.  *  St.  1884,  c.  306. 


64         THE  KOAD  AND  THE  ROADSIDE. 

The  public  has  a  right  to  occupy  the  highway  for  travel 
and  other  legitimate  purposes,  and  to  use  the  soil,  the 
growing  timber,  and  other  materials  found  within  the 
space  of  the  road,  in  a  reasonable  manner,  for  the  pur- 
pose of  making  and  repairing  the  road  and  the  bridges 
thereon.1  But  the  public  cannot  go  upon  the  land  of  an 
adjoining  owner  without  his  consent,  to  remove  stones  or 
earth,  to  repair  a  bridge  or  the  highway ;  and  if  in  con- 
sequence of  such  removal  the  land  is  injured,  by  floods 
or  otherwise,  he  can  recover  damages  therefor.2  He  is 
not  obliged  to  build  or  maintain  a  road  fence,  except  to 
keep  his  own  animals  at  home,  but  if  he  does  build  a 
fence  he  must  set  it  entirely  on  his  own  land ;  and  like- 
wise, if  a  town  constructs  an  embankment  to  support  a 
road  or  bridge,  it  must  keep  entirely  within  the  limits  of 
the  highway,  for  if  any  part  of  the  embankment  is  built 
on  his  land  he  can  collect  damages  of  the  town.3  He 
may  carry  water-pipes  underground  through  the  high- 
way, or  turn  a  watercourse  across  the  same  below  the 
surface,  provided  he  does  not  deprive  the  public  of  their 
rights  in  the  way.4  From  the  time  of  Edward  IV.  it  has 
been  the  settled  law  that  the  owner  of  the  soil  in  the 
highway  is  entitled  to  all  the  profits  of  the  freehold,  the 
grass  and  trees  upon  it  and  the  mines  under  it.  He  can 
lawfully  claim  all  the  products  of  the  soil  and  all  the 
fruit  and  nuts  upon  the  trees.  He  may  maintain  tres- 
pass for  any  injury  to  the  soil  or  to  the  growing  trees 
thereon,  which  is  not  incidental  to  the  ordinary  and 

i  15  Johns,  447.  2  107  Mass.  414. 

*  4  Gray,  215 ;  136  Mass.  10.  *  6  Mass.  454. 


USE  OF  HIGHWAYS  BY  ADJOINING  OWNERS.          65 

legitimate  uses  of  the  road  by  the  public.  His  land  in 
the  highway  may  be  recovered  in  ejectment  just  the  same 
as  any  of  his  other  land.  No  one  has  any  more  right  to 
graze  his  highway  land  than  his  tillage  land.1  He  may 
cut  the  hay  on  the  roadside,  gather  the  fruit  and  crops 
thereon,  and  graze  his  own  animals  there ;  and  the  by- 
laws of  the  cities  and  towns  preventing  the  pasturing  of 
cattle  and  other  animals  in  the  highway  are  not  to  affect 
his  right  to  the  use  of  land  within  the  limits  of  the  road 
adjoining  his  own  premises.3 

It  is  not  one  of  the  legitimate  uses  of  the  highway  for 
a  traveller  or  a  loafer  to  stop  in  front  of  your  house  to 
abuse  you  with  blackguardism,  or  to  play  a  tune  or  sing 
a  song  which  is  objectionable  to  you ;  and  if  you  request 
him  to  pass  on  and  he  refuses  to  go,  you  may  treat  him 
as  a  trespasser  and  make  him  pay  damages  and  costs, 
if  he  is  financially  responsible.3  And  likewise,  if  any 
person  does  anything  on  the  highway  in  front  of  your 
premises  to  disturb  the  peace,  to  draw  a  crowd  together, 
or  to  obstruct  the  way,  he  is  answerable  in  damages  to 
you  and  liable  to  an  indictment  by  the  grand  jury.4 

Although  the  owner  of  the  fee  in  a  highway  has  many 
rights  in  the  way  not  common  to  the  public,  yet  he  must 
exercise  those  rights  with  due  regard  to  the  public  safety 
and  convenience.  Perhaps,  in  the  absence  of  objections 
on  the  part  of  the  highway  surveyor,  or  of  prohibitory 
by-laws  on  the  part  of  the  town,  he  has  a  right  to  take 
soil  or  other  material  from  the  roadside  for  his  own  pri- 

i  16  Mass.  33 ;  8  Allen,  473.        2  Pub.  St.  c.  53,  §  10. 
«  38  Me.  195.  4  24  Pick.  187. 

5 


66         THE  ROAD  AND  THE  ROADSIDE. 

vate  use,  "but  he  certainly  has  no  right  to  injure  the  road 
by  his  excavations,  or  to  endanger  the  lives  of  travellers 
by  leaving  unsafe  pits  in  the  wayside.  He  can  load 
and  unload  his  vehicles  in  the  highway,  in  connection 
with  his  business  on  the  adjoining  land,  but  it  must  be 
done  in  such  a  manner  as  not  unreasonably  to  interfere 
with  or  incommode  the  travelling  public.  When  a  man 
finds  it  necessary  to  crowd  his  teams  and  wagons  into 
the  street,  and  thereby  blockade  the  highway  for  hours 
at  a  time,  he  ought  either  to  enlarge  his  premises  or 
remove  his  business  to  some  more  convenient  spot.  He 
has  a  right  to  occupy  the  roadside  with  his  vehicles, 
loaded  or  unloaded,  to  a  reasonable  extent ;  but  when  he 
fills  up  the  road  with  logs  and  wood,  tubs  and  barrels, 
wagons  and  sleighs,  pig-pens  and  agricultural  machin- 
ery, or  deposits  therein  stones  and  rubbish,  he  is  not 
using  the  highway  properly,  but  is  abusing  it  shame- 
fully, and  is  responsible  in  damages  to  any  one  who  is 
injured  in  person  or  property  through  his  negligence, 
and,  moreover,  is  liable  to  indictment  for  illegally  ob- 
structing the  roadway.1  As  before  said,  he  has  a  per- 
fect right  to  pasture  the  roadside  with  his  animals ;  but 
if  he  turns  them  loose  in  the  road,  and  they  there  injure 
the  person  or  property  of  any  one  legally  travelling 
therein,  he  is  answerable  in  damages  to  the  full  extent 
of  the  injuries,  whether  he  knows  they  have  any  vicious 
habits  or  not.2  If  his  cow,  bull,  or  horse,  thus  loose 

1  1  Gush.  443;  13  Met.  115;  107  Mass.  264;  14  Gray,  75; 
Pub.  St.  c.  112,  §  17. 

2  4  Allen,  444. 


USE  OF  HIGHWAYS  BY  ADJOINING  OWNERS.          67 

in  the  highway,  gore  or  kick  the  horse  of  some  traveller, 
he  is  liable  for  all  damages;1  and  in  one  instance  a 
peaceable  and  well-behaved  hog  in  the  road  cost  her 
owner  a  large  sum  of  money,  because  the  horse  of 
a  traveller,  being  frightened  at  her  looks,  ran  away, 
smashed  his  carriage,  and  threw  him  out.2 

As  an  offset  to  his  advantages  as  adjoining  owner 
there  are  a  few  disadvantages.  Highways  are  set  apart, 
among  other  things,  that  cattle  and  sheep  may  be  driven 
thereon  ;  and  as,  from  the  nature  of  such  animals,  it  is 
impossible  even  with  care  to  keep  them  upon  the  high- 
ways unless  the  adjoining  land  is  properly  fenced,  it  fol- 
lows that  when  they  are  driven  along  the  road  with  due 
care,  and  then  escape  upon  adjoining  land  and  do  dam- 
age their  owner  is  not  liable  therefor,  if  he  makes 
reasonable  efforts  to  remove  them  as  speedily  as  possi- 
ble.3 Likewise,  if  a  traveller  bent  upon  some  errand 
of  mercy  or  business  finds  the  highway  impassable  by 
reason  of  some  wash-out,  snowdrift,  or  other  defect,  he 
may  go  round  upon  adjoining  land,  without  liability,  so 
far  as  necessary  to  bring  him  to  the  road  again,  beyond 
the  defect.4  If  a  watercourse  on  adjoining  land  is 
allowed  by  the  land-owner  to  become  so  obstructed  by 
ice  and  snow,  or  other  cause,  that  the  water  is  set  back, 
and  overflows  or  obstructs  the  road,  the  highway  sur- 
veyor may,  without  liability,  enter  upon  adjoining  land 
and  remove  the  nuisance,  if  he  acts  with  due  regard 

1 10  Cox,  102.  2  25  Me.  538. 

«  114  Mass.  466.  *  7  Gush.  408. 


68          THE  ROAD  AND  THE  ROADSIDE. 

to  the  safety  and  protection  of  the  land  from  needless 
injury.1 

A  town  or  city  has  a  right,  in  repairing  a  highway, 
to  so  raise  the  grade  or  so  construct  the  water-bars 
within  its  limits,  as  to  cause  surface  water  to  flow  in 
large  quantities  upon  adjoining  land,  to  the  injury  of 
the  owner  thereof;  but,  on  the  other  hand,  the  land- 
owner has  a  right  to  cause,  if  he  can,  the  surface  water 
on  his  land  to  flow  off  upon  the  highway,  and  he  may 
lawfully  do  anything  he  can,  on  his  own  land,  to  pre- 
vent surface  water  from  coming  thereon  from  the  high- 
way, and  may  even  stop  up  the  mouth  of  a  culvert  built 
by  a  town  across  the  way  for  the  purpose  of  conducting 
such  surface  water  upon  his  land,  providing  he  can  do  it 
without  exceeding  the  limits  of  his  own  land.2 

When  the  owner  of  land  is  constructing  or  repairing 
a  building  adjoining  the  highway,  it  is  his  duty  to  pro- 
vide sufficient  safeguards  to  warn  and  protect  passing 
travellers  against  any  danger  arising  therefrom ;  and  if 
he  neglects  to  do  so,  and  a  traveller  is  injured  by  a  falling 
brick,  stick  of  timber,  or  otherwise,  he  is  responsible.3 

If  the  adjoining  owner  of  a  building  suffers  snow  and 
ice  to  accumulate  on  the  roof,  and  allows  it  to  remain 
there  for  an  unusual  and  unreasonable  time,  he  is  liable, 
if  it  slides  off  and  injures  a  passing  traveller.4  And, 
generally,  the  adjoining  owner  is  bound  to  use  ordi- 
nary care  in  maintaining  his  own  premises  in  such  a 

*  134  Mass.  522.  2  13  Allen,  211,  291 ;  136  Mass.  119. 

8  123  Mass.  26.  *  101  Mass.  251 ;  106  Mass.  194. 


USE  OF  HIGHWAYS  BY  ADJOINING  OWNERS.          69 

condition  that  persons  lawfully  using  the  highway  may 
do  so  with  safety. 

The  general  doctrine  as  to  the  use  of  property  is  here, 
as  elsewhere,  Sic  utere  tuo  ut  alienum  non  Icedas,  — "  So 
use  your  own  property  as  not  to  injure  the  rights  of 
another."  If  you  make  an  excavation  on  your  land  so 
near  to  a  highway  that  travellers  are  liable  accidentally 
to  fall  therein,  you  had  better  surround  it  with  a  fence 
or  other  safeguard  sufficient  to  protect  reasonably  the 
safety  of  travellers.  If  you  have  any  passage-ways, 
vaults,  coal-holes,  flap-doors,  or  traps  of  any  kind  on 
your  premises,  which  are  dangerous  for  children  or 
unwary  adults,  you  had  better  abolish  them,  or  at  any 
rate  take  reasonable  precaution  to  cover  or  guard  them 
in  such  manner  as  ordinary  prudence  dictates,  and  espe- 
cially if  they  are  near  the  highway ;  for  if  you  do  not  you 
may,  some  time  when  not  convenient  for  you,  be  called 
upon  to  pay  a  large  claim  for  damages  or  to  defend 
yourself  against  an  indictment  But  if  you  have  so 
covered  and  guarded  them,  and  by  the  act  of  a  tres- 
passer, or  in  some  other  way  without  fault  on  your  part, 
the  cover,  fence,  or  guard  is  removed,  you  are  not  liable 
until  you  have  had  actual  or  constructive  notice  of 
the  fact,  and  have  had  reasonable  opportunity  to  put  it 
right.1 

1  4  Carr.  &  Payne,  262,  337 ;  51  N.  Y.  229 ;  19  Conn.  507. 


70         THE  ROAD  AND  THE  ROADSIDE. 


CHAPTER  XV. 

PEIVATE  WAYS. 

A  PRIVATE  way  is  the  right  of  passage  over  another 
man's  land.  It  may  be  established  and  discontinued 
in  the  same  manner  as  a  public  way,  and  it  may  also 
arise  from  necessity.  A  way  of  necessity  is  where 
a  person  sells  land  to  another  which  is  wholly  sur- 
rounded by  his  own  land,  or  which  cannot  be  reached 
from  the  public  highways  or  from  the  land  of  the  pur- 
chaser. In  such  case  the  purchaser  is  unable  to  reach 
his  land  at  all  unless  he  can  go  over  some  of  the  sur- 
rounding estates ;  and  inasmuch  as  he  cannot  go  over 
the  premises  of  those  who  are  strangers  to  him,  in  law, 
and  inasmuch  as  public  policy  and  simple  justice  call 
for  a  passage-way  to  his  land,  for  his  use  in  the  care  and 
cultivation  of  it,  the  law  gives  him  a  way  of  necessity 
over  his  grantor's  land,  which  runs  with  his  land,  as 
appurtenant  thereto,  so  long  as  the  necessity  exists, 
even  if  nothing  is  said  in  the  deed  about  a  right  of  way, 
because  it  is  presumed  that  when  the  grantor  sells  the 
land  he  intends  to  convey  with  it  a  right  of  way,  with- 
out which  it  could  not  be  used  and  enjoyed  ;  but  when 
the  necessity  ceases,  the  right  ceases  also.1  In  the 
1  14  Mass.  49 ;  2  Met.  457 ;  14  Gray,  126. 


PRIVATE  WAYS.  71 

absence  of  contract,  it  belongs  to  the  owner  of  a  private 
way  to  keep  it  in  repair,1  and  for  this  purpose  he  may 
enter  upon  the  way  and  do  whatever  is  necessary  to 
make  it  safe  and  convenient ;  but  if  in  so  doing  he  re- 
moves soil  and  stones  which  are  not  needed  on  the  way, 
such  surplus  material  belongs  to  the  owner  of  the  land 
over  which  the  way  passes.2  If  a  defined  and  desig- 
nated way  becomes  impassable  for  want  of  repair  or  by 
natural  causes,  the  owner  of  the  way  has  not  the  right 
of  a  traveller  on  a  public  road  to  go  outside  the  limits 
of  the  way  in  order  to  pass  from  one  point  to  another.3 
But  if  the  owner  of  the  land  obstructs  the  way,  a  person 
entitled  to  use  it  may,  without  liability,  enter  upon  and 
go  over  adjoining  land  of  the  same  owner,  provided  he 
does  no  unnecessary  damage.4  The  reason  for  this  dis- 
tinction in  the  law  between  a  public  and  a  private  way  is 
that  in  the  case  of  a  private  way  the  owner  of  the  way, 
who  alone  has  the  right  to  its  use,  is  bound  to  keep  it 
in  repair,  whereas  in  the  case  of  a  public  way  the  trav- 
eller is  under  no  obligation  to  keep  it  in  passable  con- 
dition. A  private  way  once  established  cannot  be 
re-located  except  with  the  consent  of  both  the  owner  of 
the  land  and  of  the  way ;  but  if  both  are  agreed,  the 
old  way  may  be  discontinued  and  re-located  in  another 
place.5  The  owner  of  the  soil  of  a  private  way  may, 
the  same  as  the  owner  of  the  fee  in  a  highway,  make 
any  and  all  uses  thereof  to  which  the  land  can  be 

i  12  Mass.  65.  *  10  Gray,  65. 

3  Wash,  on  Ease.  *196.  *  2  Allen,  543. 

6  5  Gray,  409  ;  14  Gray,  473. 


72         THE  ROAD  AND  THE  ROADSIDE. 

applied.1  In  the  absence  of  agreement  to  the  contrary, 
he  may  lawfully  and  without  liability  cover  such  way 
with  a  building  or  other  structure,  if  he  leaves  a  space 
so  wide,  high,  and  light  that  the  way  is  substantially 
as  convenient  as  before  for  the  purpose  for  which  it 
was  established.2  And  so,  in  the  absence  of  agreement, 
he  may  maintain  such  fences  across  the  way  as  are 
necessary  to  enable  him  to  use  his  land  for  agricultural 
purposes,  but  he  must  provide  suitable  bars  or  gates  for 
the  use  and  convenience  of  the  owner  of  the  way.  He 
is  not  required  to  leave  it  as  an  open  way,  nor  to  pro- 
vide swing  gates,  if  a  reasonably  convenient  mode  of 
passage  is  furnished ;  and  if  the  owner  of  the  way  or 
his  agents  leave  the  bars  or  gates  open,  and  in  conse- 
quence thereof  damage  is  done  by  animals,  he  is  liable 
to  respond  in  damages.3  "  The  law  of  the  road  "  applies 
as  well  to  private  as  to  public  ways,  as  the  object  of  the 
law  is  to  prescribe  a  rule  of  conduct  for  the  convenience 
and  safety  of  those  who  may  have  occasion  to  travel, 
and  actually  do  travel,  with  carriages  on  a  place  adapted 
to  and  fitted  and  actually  used  for  that  purpose.4  The 
description  of  a  way  as  a  "  bridle-road  "  does  not  confine 
the  right  of  way  to  a  particular  class  of  animals  or 
special  mode  of  use,  but  it  may  be  used  for  any  of  the 
ordinary  purposes  of  a  private  road.6 

i  Wash,  on  Ease.  *196.  *  2  Met.  457. 

8  31  N.  Y  366  ;  44  N.  H.  539;  4  M.  &  W.  245. 
*  23  Pick.  201.  6  16  Gray,  175. 


DON'T.  73 


CHAPTER  XVI. 

DON'T. 

IN  school,  church,  and  society  many  things  are  taught 
by  the  prohibitory  don't ;  and  thus  many  rules  of  law 
relating  to  public  and  private  ways  may  be  taught  and 
illustrated  in  the  same  way.  For  instance  :  — 

Don't  ever  drink  intoxicating  liquor  as  a  beverage, 
at  least  in  large  quantities.  If  you  ever  have  occasion  to 
use  it  at  all,  use  it  very  sparingly,  especially  if  you  are 
travelling  or  are  about  to  travel  with  a  team  ;  for  if  you 
should  collide  with  another  team,  or  meet  with  an  acci- 
dent on  account  of  a  defect  in  the  way,  in  a  state  of  in- 
toxication, your  boozy  condition  would  be  some  evidence 
that  you  were  negligent.  The  law,  however,  is  mer- 
ciful and  just,  and  if  you  could  satisfy  the  court  or 
jury  that  notwithstanding  your  unmanly  condition  you 
were  using  due  care,  and  that  the  calamity  happened 
through  no  fault  of  yours,  you  would  still  be  entitled  to 
a  decision  in  your  favor ;  but  when  you  consider  how 
apt  a  sober  human  mind  is  to  think  that  an  intoxicated 
mind  is  incapable  of  clear  thought  and  intelligent  action, 
I  think  you  will  agree  with  the  decisions  of  the  courts, 
which  mean,  when  expressed  in  plain  language,  "  You 


74         THE  ROAD  AND  THE  ROADSIDE. 

had  better  not  be  drunk  when  you  get  into  trouble  on 
the  highway." l 

Don't  ever  approach  a  railway  crossing  without  look- 
ing out  for  the  engine  while  the  bell  rings,  and  listen, 
ing  to  see  if  the  train  is  coming ;  for  there  is  good  sense 
as  well  as  good  law  in  the  suggestion  of  Chief  Baron 
Pollock,  that  a  railway  tracker  se  is  a  warning  of  dan- 
ger to  those  about  to  go  upon  it,  and  cautions  them  to 
see  if  a  train  is  coming.  And  our  court  has  decided  that 
when  one  approaches  a  railway  crossing  he  is  bound  to 
keep  his  eyes  open,  and  to  look  up  and  down  the  rails 
before  going  upon  them,  without  waiting  for  the  engi- 
neer to  ring  the  bell  or  to  blow  the  whistle.2  It  is  a 
duty  dictated  by  common  sense  and  prudence,  for  one 
approaching  a  railway  crossing  to  do  so  carefully  and 
cautiously  both  for  his  own  sake  and  the  sake  of  those 
travelling  by  rail.  If  one  blindly  and  wilfully  goes  upon 
a  railway  track  when  danger  is  imminent  and  obvious, 
and  sustains  damage,  he  must  bear  the  consequences  of 
his  own  rashness  and  folly. 

Don't  drive  horses  or  other  animals  affected  by  con- 
tagious diseases  on  the  public  way,  or  allow  them  to 
drink  at  public  watering-places,  or  keep  them  at  home,  for 
that  matter.  The  common  law  allows  a  man  to  keep  on 
his  own  premises  horses  afflicted  with  glanders,  or  sheep 
afflicted  with  foot-rot,  or  other  domestic  animals  afflicted 
with  any  kind  of  diseases,  provided  he  guards  them 
with  diligence  and  does  not  permit  them  to  escape  on  to 
his  neighbor's  land  or  the  public  way.  But  under  the 
i  3  Allen,  402 ;  115  Mass.  239.  2  12  Met.  415. 


DON'T.  75 

statute  law  of  this  State,  a  man  having  knowledge  of  the 
existence  of  a  contagious  disease  among  any  species  of 
domestic  animals  is  liable  to  a  fine  of  five  hundred  dol- 
lars, or  imprisonment  for  one  year,  if  he  does  not  forth- 
with inform  the  public  authorities  of  such  disease.1 
Aside  from  the  penalty  of  the  statute  law,  it  is  clearly 
an  indictable  offence  for  any  one  to  take  domestic  ani- 
mals affected  with  contagious  diseases,  knowing  or  hav- 
ing reason  to  know  them  to  be  so  affected,  upon  the 
public  ways,  where  they  are  likely  to  give  such  diseases 
to  sound  animals;  and  he  would  be  answerable  in 
damages,  besides.2 

If  you  are  afflicted  with  a  contagious  or  infectious 
disease,  don't  expose  yourself  on  a  highway  or  in  a  pub- 
lic place ;  and  don't  expose  another  person  afflicted  with 
such  disease,  as  thereby  you  may  jeopardize  the  health 
of  other  people,  and  your  property  also,  in  case  you 
should  be  sued  by  some  one  suffering  on  account  of 
your  negligence.3 

When  there  is  snow  on  the  ground,  and  the  movement 
of  your  sleigh  is  comparatively  noiseless,  don't  drive  on 
a  public  way  without  having  at  least  three  bells  attached 
to  some  part  of  your  harness,  as  that  is  the  statute  as  well 
as  the  common  law.  By  the  statute  law  you  would  be 
liable  to  pay  a  fine  of  fifty  dollars  for  each  offence.  And 
by  the  statute  and  common  law,  in  case  of  a  collision 
with  another  team,  you  would  probably  be  held  guilty 

1  St.  1885,  c.  148. 

2  2  Rob.  N.  Y.  326 ;  16  Conn.  200. 

8  4  M.  &  S.  73;  Wood  on  Nuisances,  70. 


76         THE  ROAD  AND  THE  ROADSIDE. 

of  culpable  negligence  and  made  to  pay  heavy  damages. 
Of  course  you  would  be  allowed  to  show  that  the  absence 
of  bells  on  your  team  did  not  cause  the  accident  or  jus- 
tify the  negligence  of  the  driver  of  the  other  team,  but 
it  would  be  a  circumstance  which  would  tell  against  you 
at  every  stage  of  the  case.1 

If  you  have  no  acquaintance  with  the  nature  and 
habits  of  horses,  and  no  experience  in  driving  or  riding 
them,  don't  try  to  ride  or  drive  any  of  them  on  a  public 
way  at  first,  but  confine  your  exercise  in  horsemanship 
to  your  own  land  until  you  have  acquired  ordinary 
skill  in  their  management ;  for  the  law  requires  every 
driver  or  rider  on  a  highway  to  be  reasonably  proficient 
in  the  care  and  management  of  any  animal  he  assumes 
to  conduct  through  a  public  thoroughfare.2 

Don't  ride  with  a  careless  driver,  if  you  can  help  it, 
because  every  traveller  in  a  conveyance  is  so  far  identi- 
fied with  the  one  who  drives  or  directs  it,  that  if  any 
injury  is  sustained  by  him  by  collision  with  another 
vehicle  or  railway  train  through  the  negligence  or  con- 
tributory negligence  of  the  driver,  he  cannot  recover 
damages  for  his  injuries.  The  passenger,  in  law,  is  con- 
sidered as  being  in  the  same  position  as  the  driver  of 
the  conveyance,  and  is  a  partaker  with  him  in  his  neg- 
ligence, if  not  in  his  sins.3 

If  you  have  a  vicious  and  runaway  horse,  and  you 
know  it,  you  had  better  sell  him.  or  keep  him  at  work 
on  the  farm.  Don't,  at  any  rate,  use  him  on  the  road 

1  12  Met.  415 ;  11  Gray,  392 ;  8  Allen,  436. 

2  2  Lev.  173.  «  Addison  on  Torts,  §  479. 


DON'T.  77 

yourself,  or  let  him  to  other  people  to  use  thereon ;  for 
if  in  your  hands  he  should  commit  injuries  to  person  or 
property,  you  would  have  to  foot  the  bills ;  and  if  he 
should  injure  the  person  to  whom  you  had  let  him,  un- 
less you  had  previously  informed  him  of  the  character 
and  habits  of  the  horse,  you  would  be  liable  to  pay  all 
the  damages  caused  by  the  viciousness  of  the  horse.  If 
you  should  meet  with  an  accident  by  reason  of  a  defect 
in  the  highway,  you  could  not  recover  anything,  how- 
ever severely  you  might  be  injured  or  damaged,  pro- 
vided the  vicious  habits  of  the  horse  contributed  to  the 
accident.1 

In  riding  or  driving  keep  hold  of  the  reins,  and  don't 
let  your  horses  get  beyond  your  control ;  for  if  you  do 
your  chances  of  victory  in  a  lawsuit  will  be  pretty  slim. 
If  you  tie  up  your  reins  for  the  purpose  of  walking  in 
order  to  get  warm  or  to  lighten  the  load,  and  let  your 
horses  go  uncontrolled,  and  they  run  over  a  child  in  the 
road  and  kill  it  or  seriously  injure  it,  you  will  probably 
have  to  pay  more  than  the  value  of  the  horses,  unless 
they  are  very  good  ones.  Or  if,  going  thus  uncontrolled, 
they  fail  to  use  due  care  and  good  judgment  in  meeting 
other  teams,  and  in  consequence  thereof  damages  occur, 
you  would  be  expected  to  make  everything  satisfactory, 
because  your  team  is  required  to  observe  "  the  law  of  the 
road  "  whether  you  are  with  it  or  not,  especially  if  you 
turn  it  loose  in  the  highway.  Even  if  you  have  hold 
of  the  reins,  and  your  horses  get  beyond  your  control  by 
reason  of  fright  or  other  cause,  and  afterwards  you  meet 
i  4  Gray,  478;  117  Mass.  204. 


78         THE  ROAD  AND  THE  ROADSIDE. 

with  an  accident  by  reason  of  a  defect  in  the  highway, 
you  cannot  recover  anything.1 

Don't  encroach  upon  or  abuse  the  highway,  either  by 
crowding  fences  or  buildings  upon  its  limits  or  by  using 
it  as  a  storage  yard.  If  you  set  a  building  on  the  line 
of  the  road,  and  then  put  the  doorsteps,  the  eaves,  and 
the  bow-windows  of  the  building  over  the  line,  you  are 
liable  to  an  indictment  for  maintaining  a  public  nui- 
sance ;  and  possibly  you  may  be  ordered  by  the  court 
to  remove  them  forthwith  at  your  own  expense.2  If 
you  build  an  expensive  bank-wall  for  a  road  fence,  and 
place  any  part  of  it  over  the  line,  you  must  remove  it 
upon  the  request  of  the  public  authorities,  or  else  take 
your  chances  on  an  indictment  for  maintaining  an  il- 
legal obstruction  in  the  highway.  If  you  deposit  on 
the  roadside  logs,  lumber,  shingles,  stones,  or  anything 
else  which  constitutes  an  obstruction  to  travel  or  a  de- 
fect in  the  way,  or  which  is  calculated  to  frighten  horses 
of  ordinary  gentleness,  and  allow  the  same  to  remain 
for  an  unreasonable  length  of  time,  you  are  liable  to 
respond  in  damages  for  all  injuries  resulting  therefrom. 
Even  if  the  town  should  have  to  settle  for  the  damages 
in  the  first  instance,  you  might  still  be  called  upon  to 
reimburse  the  town.3 

Don't  ride  on  the  outside  platform  of  a  passenger 
coach ;  for  if  you  cling  upon  a  crowded  stage-coach  or 

1  101  Mass.  93 ;  106  Mass  278 ;  40  Barb.  193. 

2  107  Mass.  234. 

8  Wood  011  Nuisances,  §§  326,  327;  102  Mass.  341;  18  Me.  286; 
41  Vt.  435. 


DON'T.  79 

street  car,  and  voluntarily  take  a  position  in  which  your 
hold  is  necessarily  precarious  and  uncertain,  you  have  no 
right  to  complain  of  any  accident  that  is  the  direct  re- 
sult of  the  danger  to  which  you  have  seen  fit  to  expose 
yourself.  However,  if  the  coach  is  stopped  for  you  to 
get  on  and  fare  is  taken  for  your  ride,  the  fact  that  you 
are  on  the  platform  is  not  conclusive  evidence  against 
you  ;  but  the  court  will  allow  the  jury  to  determine,  upon 
all  the  evidence  and  under  all  the  circumstances,  whether 
you  were  in  the  exercise  of  due  care,  instructing  them 
that  the  burden  of  proof  is  upon  you  to  show  that  the  in- 
jury resulted  solely  by  the  negligence  of  the  proprietors 
of  the  coach.1 

Don't  jump  off  a  passenger  coach  when  it  is  in  mo- 
tion; for  if  you  get  off  without  doing  or  saying  any- 
thing, or  if  you  ring  the  bell  and  then  get  off  before  the 
coach  is  stopped,  without  any  notice  to  those  in  charge 
of  it,  and  without  their  knowing,  or  being  negligent  in 
not  knowing,  what  you  are  doing,  the  coach  proprietors 
are  not  liable  for  any  injury  you  may  receive  through 
a  fall  occasioned  by  the  sudden  starting  of  the  coach 
during  your  attempt  to  get  off.2 

Don't  wilfully  break  down,  injure,  remove,  or  destroy 
a  milestone,  mile-board,  or  guide-post  erected  upon  a 
public  way,  or  wilfully  deface  or  alter  the  inscription 
on  any  such  stone  or  board,  or  extinguish  a  lamp,  or 
break,  destroy,  or  remove  a  lamp,  lamp-post,  railing,  or 
posts  erected  on  a  street  or  other  public  place ;  for  if  you 

i  103  Mass.  391 ;  8  Allen,  234 ;  115  Mass.  239. 
3  106  Mass.  463. 


80         THE  ROAD  AND  THE  ROADSIDE. 

do  you  are  liable  to  six  months'  imprisonment  or  a  fine 
of  fifty  dollars.1 

If  in  travelling  you  find  the  road  impassable,  or  closed 
for  repairs,  and  you  find  it  convenient  to  turn  aside  and 
enter  upon  adjoining  land  in  order  to  go  on  your  way, 
don't  be  careless  or  imprudent ;  for  if  you  take  down 
more  fences  and  do  more  damage  than  necessary,  you 
may  have  to  answer  in  damages  to  the  owner  of  the 
land ;  and  if  you  meet  with  an  accident  while  thus  out 
of  the  road,  you  cannot  look  to  the  town  for  any  remu- 
neration therefor,  because  when  you  go  out  of  the  limits 
of  the  way  voluntarily,  you  go  at  your  peril  and  on  your 
own  responsibility.2 

Don't  make  the  mistake  of  supposing  that  everything 
that  frightens  your  horse  or  causes  an  accident  in  the 
highway  is  a  defect  for  which  the  town  is  liable.  If  a 
town  negligently  suffers  snowdrifts  to  remain  in  the  road 
for  a  long  time,  and  thereby  you  are  prevented  from 
passing  over  the  road  to  attend  to  your  business,  or,  in 
making  an  attempt  to  pass,  your  horses  get  into  the  snow 
and  you  are  put  to  great  trouble,  expense,  and  loss  of 
time  in  extricating  them,  you  are  remediless  unless  you 
receive  some  physical  injury  in  your  person  or  property ; 
as  the  remedy  provided  by  the  statutes,  in  case  of  de- 
fects in  the  highway,  does  not  extend  to  expenses  or  loss 
of  time  unless  they  are  incident  to  such  physical  injury. 
In  other  words,  the  statute  gives  no  one  a  claim  for 
damages  sustained  in  consequence  of  inability  to  use  a 

1  Pub.  St.  c.  203,  §  76. 

2  8  Met.  391 ;  7  Gush.  408  ;  7  Barb.  309. 


DON'T.  81 

road.1  And  so  a  town  or  city  is  not  obliged  to  .light 
the  highways,  and  an  omission  to  do  so » is  not  a  defect 
in  the  way  for  which  it  is  liable.2 

Nor  is  the  mere  narrowness  and  crookedness  of  a 
road  a  defect  within  the  meaning  of  the  statutes. 
Towns  and  cities  are  only  required  to  keep  highways 
in  suitable  repair  as  they  are  located  by  the  public 
authorities,  and  they  have  no  right  to  go  outside  the 
limits  defined  by  the  location  in  order  to  make  the 
road  more  safe  and  convenient  for  travel.  If  a  high- 
way is  so  narrow  or  crooked  as  to  be  unsafe,  the  proper 
remedy  is  by  an  application  to  the  county  commis- 
sioners to  widen  or  straighten  it.3  Nor  is  smooth 
and  slippery  ice,  in  country  road  or  city  street,  a  de- 
fect for  which  a  town  or  city  is  liable,  if  the  road 
whereon  the  ice  accumulates  is  reasonably  level  and 
well  constructed.  In  our  climate  the  formation  of  thin 
but  slippery  ice  over  the  whole  surface  of  the  ground 
is  frequently  only  the  work  of  a  few  hours;  and  to 
require  towns  and  cities  to  remove  this  immediately 
or  at  all  is  supposing  that  the  legislature  intended  to 
cast  upon  them  a  duty  impossible  to  perform,  and  a 
burden  beyond  their  ability  to  carry.4 

If  you  meet  with  an  accident  on  the  highway  by 
reason  of  a  defect  therein,  don't  fail  to  give  notice  in 
writing  within  thirty  days,  to  the  county,  town,  place, 
or  persons  by  law  obliged  to  keep  said  highway  in 

1  13  Met.  297 ;  6  Gush.  141. 

2  136  Mass.  419.  8  105  Mass.  473. 
*  12  Allen,  566  ;  102  Mass.  329  ;  104  Mass.  78. 


82         THE  ROAD  AND  THE  ROADSIDE. 

repair,  stating  the  time,  place,  and  cause  of  the  injury 
or  damage.1  This  notice  is  a  condition  precedent  to 
the  right  to  maintain  an  action  for  such  injury  or 
damage,  and  cannot  be  waived  by  the  city  or  town.2 
Nothing  will  excuse  such  notice  except  the  physical 
or  mental  incapacity  of  the  person  injured,  in  which 
case  he  may  give  the  notice  within  ten  days  after  such 
incapacity  is  removed,  and  in  case  of  his  death  it  may 
be  given  by  his  executors  or  administrators.3  Formerly 
it  was  essential  that  the  time,  place,  and  cause  of  the 
injury  should  be  set  forth  in  the  notice  with  consider- 
able particularity,  but  now  the  notice  is  not  invalid  by 
reason  of  any  inaccuracy  in  stating  the  time,  place,  and 
cause,  if  the  error  is  not  intentional  and  the  party 
entitled  to  notice  is  not  misled.4 

Don't  convey  by  warranty  deed  a  piece  of  land  over 
which  there  is  a  public  or  a  private  way,  without  con- 
veying subject  to  such  way ;  for  if  you  do  you  may 
be  called  upon  to  make  up  the  difference  in  value  in 
the  land  with  the  incumbrance  upon  it  and  with  it 
off,  which  is  regarded  as  a  just  compensation  for  the 
injury  resulting  from  such  an  incumbrance.6 

Finally,  don't  keep  a  dog  that  is  in  the  habit  of  run- 
ning into  the  road  and  barking  at  passing  teams.  You 
had  better  get  rid  of  him  or  break  him  of  the  habit. 
Under  our  statutes  the  owner  or  keeper  of  a  dog  is  re- 
sponsible to  any  person  injured  by  him,  either  in  person 

1  Pub.  St.  c.  52,  §§  19-21.  2  128  Mass.  387. 

«  Pub.  St.  c.  52,  §  21.  4  St.  1882,  c.  36. 

6  2  Mass.  97 ;  15  Pick.  66 ;  2  Allen,  428. 


DON'T.  83 

or  property,  double  the  amount  of  damage  sustained ; 
and  after  he  has  received  notice  of  the  bad  disposition 
of  his  dog,  he  is  liable  to  have  the  damage  increased 
threefold. 

Every  dog  that  has  the  habit  of  barking  at  people  on 
the  highway  is  liable  any  day  to  subject  his  owner  or 
keeper  to  large  liabilities ;  for  if  he  frightens  a  horse 
by  leaping  or  barking  at  him  in  mere  play,  and  the 
horse  runs  away,  or  tips  over  the  vehicle  to  which  he 
is  hitched,  his  owner  or  keeper  is  responsible  for  double 
the  damages  thus  caused  by  his  dog.  Hence  I  repeat  the 
injunction,  Get  rid  of  such  a  dog  or  break  him  of  the 
habit ;  and  if  this  cannot  be  done,  then  break  his  neck. 

Perhaps  it  might  be  well  to  say,  in  this  connection, 
that  any  traveller  on  the  road,  either  riding  or  walking 
peaceably,  who  is  suddenly  assaulted  by  a  dog,  whether 
licensed  or  not,  may  legally  kill  him,  and  thus  relieve 
his  owner  or  keeper  of  a  disagreeable  duty.1 

1  11  Gray,  29 ;  1  Alleii,  191 ;  3  Allen,  191. 


84         THE  KOAD  AND  THE  ROADSIDE. 


CHAPTER  XVII. 

FOOT-PATHS. 

AIR,  sunlight,  and  exercise  are  absolutely  essential 
for  the  proper  physical  and  intellectual  development  of 
human  beings.  Thoreau  thought  it  necessary  for  people 
who  wished  to  preserve  their  health  and  spirits  to  spend 
four  hours  a  day  in  the  open  air,  sauntering  through  the 
woods  and  over  the  hills  and  fields,  free  from  all  worldly 
engagements.  No  doubt  he  spoke  from  his  own  personal 
standpoint,  and  many  persons  do  not  require  so  much 
exercise  in  the  open  air  as  he  did  in  order  to  preserve 
their  health  and  spirits ;  but  the  proper  observance  of 
the  laws  of  health  certainly  requires  every  one  to  spend 
a  portion  of  every  pleasant  day  in  the  open  air,  and  on 
foot  if  possible.  Since  the  morning  stars  first  sang  to- 
gether, the  whole  creation  has  been  groaning  and  travail- 
ing in  preparing  the  earth  for  the  habitation  of  man ; 
and  the  influence  and  teachings  of  Nature  have  ever 
aided  powerfully  in  perfecting  man  and  upbuilding  the 
ruling  nations  of  the  world. 

The  progenitors  of  every  vigorous  race  have  always 
found  in  forest  and  wilderness  the  tonics  and  sources  of 
their  strength.  It  took  forty  years  of  wandering  in  the 
wilderness  to  prepare  the  Israelites  for  the  occupation 


FOOT-PATHS.  85 

of  the  promised  land.  In  the  open  and  out-door  life  of 
the  Athenians  was  developed  a  civilization  noble  in 
high  aspirations  for  the  ideal  in  beauty  and  life,  rich  in 
literary  and  oratorical  achievements,  and  glorious  in  the 
great  and  profound  thoughts  of  immortal  teachers  and 
philosophers.  The  august  and  all-conquering  civiliza- 
tion of  the  Romans  had  its  origin  on  Palatine  Hill  when 
herdsmen  and  wolves  roamed  over  it.  In  Holland, 
where  the  people  are  ever  in  conflict  with  the  elements 
of  Nature,  the  land  has  been  reclaimed  by  human  effort 
from  "the  multitudinous  waves  of  the  sea."  The 
streams  that  once  spread  over  the  land  or  hid  them- 
selves in  quicksands  and  thickets  are  made  to  flow  in 
channels  and  form  a  network  of  watery  highways  for 
commerce  and  the  fertilization  of  the  soil ;  and  where 
formerly  lagoons  and  morasses  found  a  home,  there  are 
now  pleasant  homesteads,  great  cities,  and  beautiful  vil- 
lages. The  Anglo-Saxon  race,  which  is  now  and  has 
been  for  centuries  the  most  vigorous  and  progressive  in 
the  world,  has  always  had  an  insatiable  hunger  for  the 
earth,  and  a  love  for  a  life  in  the  fields  by  stream  or  by 
roadside.  Everywhere  we  find  the  highest  type  of  civ- 
ilization where  man  has  gained  the  mastery  of  Nature 
by  the  work  of  his  hands.  The  home  of  such  a  civiliza- 
tion is  usually  found  where  forests  have  been  removed, 
and  the  wild  vegetation  of  primitive  times  has  been 
expelled  to  make  room  for  the  thousand  and  one  pro- 
ductions of  modern  cultivation ;  where  hillsides  and 
mountain-cliffs  have  been  festooned  with  vines  and 
made  to  blossom  like  the  rose;  where  watercourses 


86         THE  ROAD  AND  THE  ROADSIDE. 

have  been  made  highways  for  trade  and  utilized  for 
purposes  of  manufacture ;  and  where  gloomy  morasses 
and  damp  lowlands  have  been  dried  up  and  made  fertile 
and  habitable  by  drainage  and  cultivation. 

As  close  contact  with  Nature  is  necessary  for  the 
making  of  nations,  so  her  teachings  are  essential  for  the 
largest  expansion  of  the  human  mind.  All  the  great 
teachers  of  the  race  have  found  in  Nature  the  germs  of 
the  thoughts  which  have  widened  the  bounds  of  human 
knowledge  "  with  the  process  of  the  suns."  "  Speak  to 
the  earth,  and  it  will  teach  thee,"  was  the  basis  of  Job's 
philosophy.  When  David  wanted  light  and  assistance, 
he  lifted  up  his  eyes  unto  the  hills,  from  whence  came 
his  help.  Plato  taught  in  the  consecrated  groves  of  the 
Academy,  and  Aristotle  in  the  pleasant  fields  of  Nym- 
phaeum  or  in  the  shady  walks  of  the  Lyceum.  Christ 
taught  his  disciples  to  heed  the  teachings  of  Nature, 
and  he  sought  strength  and  inspiration  in  the  wilder- 
ness and  the  mountains.  Wordsworth's  library  was  in 
his  house,  but  his  study  was  out  of  doors.  But  why 
enumerate,  when  the  entire  intellectual  history  of  our 
race  demonstrates  that  every  invention  or  thought  which 
has  extended  man's  mental  vision  and  knowledge  has 
been  evolved  from  the  discovery  of  some  hitherto  hidden 
law  of  the  material  world,  or  from  the  teachings  of 
Nature,  which  always  foreshadow  the  fundamental  prin- 
ciples regnant  in  the  seen  and  the  unseen  world  ?  Hence 
anything  which  tends  to  bring  people  into  the  open  air 
and  into  a  closer  communion  with  Nature  is  worthy  of 
encouragement. 


FOOT-PATHS.  87 

Good  foot-paths  would  furnish  an  easy  and  convenient 
way  of  getting  at  Nature ;  and  being  free  from  the  dust 
and  heat  of  the  highway,  and  somewhat  retired  and 
secluded,  they  would  be,  during  a  considerable  portion 
of  the  year,  musical  with  the  song  of  birds  and  beautiful 
with  green  foliage  and  lovely  flowers.  These  paths 
would  invite  and  encourage  people  to  take  long  walks, 
and  this  habit  would  undoubtedly  conduce  to  their  lon- 
gevity and  robust  health.  And  the  promotion  of  health 
is  now  regarded,  in  every  enlightened  community,  as 
one  of  the  objects  of  government.  The  enjoyment  of 
life  depends  in  great  measure  upon  the  state  of  our 
health.  When  the  air  feels  bracing,  and  food  and  drink 
taste  sweet  to  us,  much  else  in  life  tastes  sweet  which 
would  otherwise  taste  sour  and  disagreeable.  Good 
drainage  and  vaccination  are  not  the  only  means  avail- 
able for  the  promotion  of  the  public  health.  People 
should  be  encouraged  and  educated  into  the  habit  of 
taking  plenty  of  exercise  in  the  open  air,  as  in  this  way 
the  public  health  will  be  improved. 

One  of  the  charms  of  old  England  is  to  be  found  in 
her  numerous  foot-paths  and  green  lanes,  which  are 
recognized  by  law,  for  many  of  them  are  older  than  the 
highways.  When  a  walker  tires  of  the  public  road  or 
is  in  a  hurry,  if  he  knows  the  country,  he  can  turn  into 
some  foot-path  and  reach  the  place  of  his  destination 
by  short  cuts  through  green  lanes,  across  pleasant  mead- 
ows, and  along  shady  hedgerows.  As  one  passes  along 
these  cosey  byways,  he  sees,  from  every  eminence  or 
turn,  a  new  prospect  over  the  landscape  interspersed 


88         THE  ROAD  AND  THE  ROADSIDE. 

with  trees,  now  and  then  the  bright  gleam  of  water 
through  the  foliage,  and  occasionally  some  beautiful 
vista  view  across  parks  and  homesteads.  In  this  way 
one  can  go  from  town  to  town,  and  get  about  the  country 
quite  independently  of  the  highways.  Most  of  the  coun- 
try churches  are  approachable  by  lanes  and  foot-paths 
which  seem  to  run  by  all  the  houses  in  the  vicinage,  and 
by  their  sweet  attractiveness  to  invite  all  the  people  to 
go  to  church,  at  least  in  pleasant  summer  weather. 

In  Massachusetts  and  some  of  the  other  States,  towns 
and  cities  have  authority  to  lay  out  foot-paths  in  the 
same  manner  as  public  ways.  It  is  to  be  hoped  ere- 
long that  the  intelligent  and  public-spirited  citizens  of 
our  towns  and  cities  will  cause  now  and  then  a  good 
foot-walk  to  be  constructed,  where  it  would  shorten  the 
distance  from  one  place  to  another,  and  possibly  pass 
through  pleasant  fields  and  woods,  and  over  hills  com- 
manding beautiful  and  extensr.e  views.  It  is  not  pleas- 
ant to  walk  in  the  dust  and  publicity  of  highways,  nor 
on  gravel  walks  in  artificial  parks,  where  sign-boards  and 
policemen  warn  you  frequently  to  "  keep  off  the  grass." 

Before  our  towns  and  cities  spend  any  more  money 
building  boulevards  and  opening  new  parks,  would  it 
not  be  well  for  them  to  consider  the  advisability  of  lay- 
ing out  some  foot-paths  for  the  comfort  and  convenience 
of  pedestrians  ?  At  any  rate,  foot-paths  could  be  made 
alongside  of  the  road-bed  of  some  of  the  public  ways,  so 
that  every  pedestrian  would  not  of  necessity  have  to 
trudge  along  in  the  dust  or  mud  incident  to  the  middle 
of  the  road. 


WITHIN  AND  WITHOUT  THE  ROADSIDE.      89 


CHAPTER   XVIII. 

WITHIN  AND  WITHOUT  THE  ROADSIDE. 

BESIDES  the  legal  duty  every  dweller  by  a  highway  is 
under,  to  use  it  with  due  regard  to  the  rights  of  the 
public,  he  is  under  a  moral  and  Christian  obligation  to 
maintain  order  and  neatness  within  and  without  his 
roadside.  The  occupations  and  amenities  of  life  are  so 
interwoven  and  intermixed  that  no  one  can  live  for  him- 
self alone  with  justice  to  himself  or  to  society.  There 
is  something  in  the  very  nature  of  things  which  makes 
for  the  reward  of  unselfish  exertion  and  for  the  condem- 
nation of  selfish  acts.  "  Whosoever  shall  seek  to  save 
his  life,  shall  lose  it ;  and  whosoever  shall  lose  his  life, 
shall  preserve  it."  Public  spirit,  like  virtue,  is  its  own 
exceeding  great  reward.  When  one  benefits  the  com- 
munity in  which  he  lives,  he  thereby  also  benefits  him- 
self ;  and  when  he  is  possessed  of  the  right  kind  of  a 
public  spirit,  he  will  beautify  and  improve  his  homestead 
and  his  roadside,  and  will  even  throw  the  cobble-stones 
out  of  the  roadway  in  front  of  his  house  without  com- 
pensation or  even  hope  of  financial  reward. 

When  he  plants  a  tree  for  the  sole  purpose  of  doing 
something  for  posterity,  and  then  watches  its  growth 
and  expansion  from  day  to  day  until  he  becomes  familiar 


90          THE  ROAD  AND  THE  ROADSIDE. 

with  its  varied  aspects  in  sunny  and  in  stormy  weather, 
and  finally,  walking  beneath  its  cooling  shade  and  see- 
ing its  limbs  swaying  gracefully  over  surrounding  ob- 
jects, his  heart  goes  out  towards  it  with  a  feeling  of 
tenderness  and  love,  and  he  feels  that  he  has  been  paid 
a  thousand  times  for  setting  it  out.  When  after  years 
of  endeavor  in  trying  to  keep  his  roadside  neat  and  clean 
and  covered  with  greensward,  he  finds  that  his  example 
is  having  some  influence  on  his  neighbors,  and  that  even 
the  road-menders  begin  to  respect  his  efforts  to  improve 
the  wayside,  he  feels  that  he  has  been  amply  compen- 
sated for  all  his  trouble  and  care  in  his  own  increased 
enjoyment  and  in  the  increased  enjoyment  he  has  been 
the  means  of  giving  to  the  public. 

First  impressions  always  have  great  influence  upon 
our  minds.  Nothing  will  give  a  traveller  a  poorer  and 
meaner  opinion  of  a  town  and  its  inhabitants  than  dilapi- 
dated buildings  surrounded  by  rubbish  and  broken-down 
fences.  When  a  traveller  passes  a  house  of  this  charac- 
ter, he  instinctively  says  to  himself,  "  Some  shiftless  and 
poverty-stricken  family  lives  here ; "  but  when  he  passes 
a  well-kept  house  with  pleasant  surroundings,  he  says, 
"  This  must  be  the  abode  of  intelligent  and  well-to-do 
people."  He  feels  like  stopping  and  forming  their  ac- 
quaintance, for  he  is  sure  that  their  acquaintance  would 
be  worth  having.  Our  opinion  of  a  person's  character 
is  always  more  or  less  influenced  by  the  clothes  he 
wears  and  by  the  house  in  which  he  lives.  The  sur- 
roundings of  every  home  of  intelligence  and  tidiness 
should  indicate  that  it  is  not  the  abode  of  the  vulgar 


WITHIN  AND  WITHOUT  THE  ROADSIDE.      91 

and  ignorant.  Therefore  every  owner  of  a  homestead 
should  strive  to  make  it  a  cosey  and  pleasant  home  for 
himself  and  family.  He  should  take  a  just  pride  in 
keeping  his  buildings  in  good  repair,  well  painted  and 
suitably  arranged  for  the  purposes  of  his  business  and 
a  happy  and  healthy  home  life.  The  surroundings 
should  be  made  neat  and  attractive,  by  the  absence  of 
rubbish,  and  the  presence  of  green  grass  and  shade 
trees. 

If  he  owns  much  land,  he  ought  to  be  landscape 
gardener  enough  to  set  out  his  fruit  and  shade  trees 
and  to  lay  out  his  fields  in  the  best  way  for  convenience 
and  scenic  effect.  He  should  also  have  sufficient  rural 
taste  not  to  locate  his  barn  and  other  out-buildings  in 
such  a  way  as  to  shut  off  the  best  views  from  his  house. 
He  ought  also  to  have  a  general  knowledge  of  the  nature 
and  uses  of  trees  and  forests,  and  the  necessity  of  their 
cultivation  for  the  good  of  himself  and  mankind  at  large. 

Forest  and  shade  trees  greatly  enhance  the  beauties 
of  a  -country,  and  no  country  can  be  beautiful  in  the 
highest  degree  without  them.  If  the  green  hills  and 
mountains  of  New  England  were  stripped  of  their  woods, 
the  lovers  of  natural  scenery  and  rural  life  would 
seek  elsewhere  the  gratification  of  their  tastes.  Even 
the  stately  homes  of  England  would  appear  common- 
place in  the  absence  of  the  majestic  trees  and  forests 
which  now  encircle  them.  A  plain,  modest  house,  situ- 
ated in  the  midst  of  an  open  grass-plat  and  sheltered 
by  a  few  handsome  shade  trees,  is  more  beautiful  and 
appeals  more  strongly  to  the  feelings  than  the  stateliest 


92          THE  KOAD  AND  THE  ROADSIDE. 

mansion  unprotected  from  the  sun.  Who  would  care  to 
live  by  the  side  of  the  purest  stream  or  body  of  water,  if 
it  were  not  fringed  with  trees  ?  Were  it  not  for  trees, 
would  there  be  any  beauty  in  mountain,  hill,  or  val- 
ley,—for  who  can  conceive  of  a  beautiful  landscape 
scene  devoid  of  trees  ? 

The  love  of  trees  seems  to  be  implanted  in  all  noble 
natures.  The  ancients  believed  that  "  the  groves  were 
the  first  temples  of  the  gods."  Christopher  North  says 
that  the  man  who  loves  not  trees  would  make  no  bones 
of  murdering. 

Some  people  give  as  an  excuse  for  not  planting  trees 
that  it  takes  so  long  for  them  to  grow  that  they  will 
not  live  to  enjoy  them.  The  selfishness  of  this  excuse 
is  enough  to  condemn  it ;  but  it  is  not  tenable  from  any 
point  of  view.  It  has  been  said  that  he  who  makes 
two  blades  of  grass  grow  where  only  one  grew  before  is 
a  benefactor  of  his  race ;  arid  of  all  the  pursuits  con- 
nected with  the  interests  of  mankind  what  can  be  the 
source  of  more  true  and  disinterested  happiness  than 
the  knowledge  that  one  has  been  instrumental  in  chang- 
ing a  waste  and  unproductive  piece  of  land  into  a  scene 
of  umbrageous  and  waving  beauty  ?  Cicero  speaks  of 
tree-planting  as  the  most  delightful  occupation  of  ad- 
vanced life ;  and  Sir  Eobert  Walpole  once  said  that 
among  the  various  actions  of  his  busy  life  none  had 
given  him  so  much  satisfaction  in  the  performance  and 
so  much  unsullied  pleasure  in  the  retrospect  as  the 
planting  with  his  own  hands  many  of  those  magnificent 
trees  that  now  form  the  pride  of  Houghton. 


WITHIN  AND  WITHOUT  THE  ROADSIDE.  93 

Of  course  it  is  not  claimed  that  every  one  should 
have  expensive  buildings  upon  his  homestead,  or  wide- 
spreading  lawns  around  his  house.  Many  are  so  situ- 
ated that  they  cannot  afford  to  live  in  costly  houses  or 
to  spend  much  money  on  their  surroundings ;  but  every 
one  can  make  his  home,  however  humble,  pleasant  and 
homelike,  and  can  keep  his  dooryard  and  wayside  free 
from  old  rubbish.  I  can  understand  how  love  can  be 
happy  in  a  cottage,  but  I  do  not  believe  it  possible  for 
a  family  to  grow  in  knowledge  and  virtue  and  enjoy 
life  while  dwelling  in  mean  and  dirty  apartments. 

Cleanliness  is  next  to  godliness,  and  it  is  just  as  true 
of  the  outside  of  the  house  as  of  the  inside.  A  pleasant 
and  beautiful  exterior  usually  signifies  pleasantness  and 
peace  within.  While  well-fenced  and  well-tilled  farms 
are  always  pleasing  to  the  eyesight,  and  neatly  dressed 
roadsides  are  generally  desirable,  it  does  not  follow  that 
no  shrubbery  or  sylvan  tangles  of  trees  should  be  allowed 
to  grow  on  farms  or  by  the  wayside.  A  bare  and  rocky 
hill  or  knoll  suggests  images  of  bleak  and  barren  desola- 
tion, cold  blasts,  and  parching  sun ;  while  a  hill  clothed 
and  capped  with  woods  gives  the  impression  of  a  rich 
and  charming  country.  Therefore  the  land  unsuitable 
for  pasturage  or  cultivation  on  a  farm  had  better  be 
covered  with  clusters  of  trees  or  with  forests ;  and  fre- 
quently an  old  stone-wall  or  heaps  of  stones  can  be 
advantageously  hidden  by  vines  and  shrubbery,  as  they 
add  beauty  to  the  landscape,  furnish  shelter  to  birds, 
and  often  protect  the  crops  from  cold  winds.  Many  a 
wayside  in  country  by-roads  is.  so  rough  and  uneven,  so 


94         THE  EOAD  AND  THE  ROADSIDE. 

rocky  and  full  of  earth-pits,  that  it  had  better  be  cov- 
ered with  the  wild  shrubbery  of  Nature  than  to  be 
cleared  up  in  such  a  way  as  to  expose  to  view  all  its 
unsightly  objects.  Whenever  the  roadside  cannot  be 
covered  by  greensward,  the  native  shrubs  and  wild  vines 
ought  to  be  allowed  to  hide  its  nakedness  with  green 
foliage  and  beautiful  flowers.  They  give  beauty  to 
wayside  scenery,  and  increase  the  interest  and  pleasure 
of  those  travelling  along  the  road. 


ENJOYMENT  OF  THE  ROAD.  95 


CHAPTER   XIX. 

ENJOYMENT  OF  THE  ROAD. 

IN  travelling,  whether  one  is  riding  or  walking,  it  is 
not  sufficient  for  the  proper  enjoyment  of  the  way  to 
know  how  to  get  along  in  a  legal  manner,  but  he  should 
know  how  to  put  himself  in  harmony  with  the  elements 
of  Nature,  and  to  feel  the  "  gay,  fresh  sentiment  of  the 
road."  The  first  requisite  for  this  enjoyment  is  to  have 
a  hopeful  and  sunshiny  disposition.  When  people  are 
buoyed  up  by  hope  they  will  find  enjoyment  under  very 
adverse  circumstances.  Adam  and  Eve,  according  to 
Milton,  saw  without  terror  for  the  first  time  the  sun 
descend  beneath  the  horizon,  and  the  darkness  close  in 
upon  the  earth,  and  "  the  firmament  glow  with  living 
sapphires,"  although  they  did  not  then  know  of  a  sunrise 
to  come.  Yet  even  in  such  a  time  as  that,  according  to 
this  poet,  these  hopeful  natures  walked  hand  in  hand 
"in  the  grateful  evening  mild,"  and  held  such  sweet 
converse  with  each  other  that  they  forgot  all  time,  all 
seasons  and  their  change,  for  all  pleased  alike.  Thus  it 
was  in  the  beginning,  and  thus  it  will  be  at  the  end ;  for 
even  in  the  darkest  as  in  the  brightest  hours  hopeful 
humanity  looks  forward  to  something  better,  as  — 

"  Of  better  and  brighter  days  to  come 
Man  is  talking  and  dreaming  ever." 


96         THE  ROAD  AND  THE  ROADSIDE. 

And  who  would  have  it  otherwise  ?  As  sunshine  is 
the  most  important  thing  in  the  natural  world,  so  it  is 
the  best  thing  in  human  life.  People  with  sunshiny  dis- 
positions are  always  happy  and  welcome  everywhere, 
whether  on  the  road,  in  the  sick-room,  or  in  the  halls  of 
gayety.  They  drive  away  the  blues  and  bring  in  hope  and 
good  cheer ;  without  them,  life  would  not  be  worth  living. 

The  French  philosopher  Figuier  was  so  impressed 
with  the  value  of  sunshine  in  human  nature  that  he 
taught  that  the  rays  of  the  sun,  which  bring  light  and 
heat  and  life  and  all  blessings  to  the  earth,  are  nothing 
but  the  loving  emanations  of  the  just  spirits  who  have 
reached  the  sun,  the  final  abode  of  all  immortal  souls  ; 
and  its  light  and  heat  are  the  result  of  their  effulgent 
goodness  and  sunshiny  dispositions. 

Every  traveller,  then,  who  wishes  to  experience  even 
the  common  and  apparent  enjoyments  of  the  way,  should 
start  out  with  a  light  heart  and  rich  in  hope ;  but  if  he 
wishes  to  taste  also  the  latent  enjoyments  of  the  way, 
he  must  have  an  observing  eye,  and  the  love  of  Nature 
in  his  heart.  It  is  astonishing  how  the  systematic 
cultivation  of  the  observing  faculties  will  develop  in 
one  the  habit  of  seeing  and  enjoying  his  environment. 
This  habit  grows  as  rapidly  as  heavenly  wisdom  in  one 
who  has  made  an  honest  attempt  to  obtain  a  knowledge 
of  God,  when  — 

"Each  faculty  tasked  to  perceive  Him 
Has  gained  an  abyss  where  a  dewdrop  was  asked." 

What  a  source  of  pleasure,  solace,  and  recreation,  then, 
is  open  to  him  who  knows  how  to  distinguish  and  appre- 


ENJOYMENT   OF  THE  EOAD.  97 

ciate  the  beautiful  in  Nature !  He  hears  in  every  breeze 
and  every  ripple  of  water  a  voice  which  the  uncultivated 
ear  cannot  hear;  and  he  sees  in  eveiy  fleeting  cloud  and 
varied  aspect  of  Nature  some  beauty  which  the  ignorant 
cannot  see. 

"  Earth 's  crammed  with  heaven, 
And  every  common  bush  afire  with  God  ; 
But  only  he  who  sees  takes  off  his  shoes." 

There  is  truth  in  the  quaint  language  of  Platen :  "  The 
more  things  thou  learnest  to  know  and  to  enjoy,  the 
more  complete  and  full  will  be  for  thee  the  delight  of 
living." 

We  frequently  find  that  when  two  persons  are  placed 
in  the  same  situation,  one  will  find  much  to  enjoy  while 
the  other  will  not,  and  simply  because  one  has  the  love 
of  Nature  in  his  heart,  and  the  other  has  not.  One  per- 
son, living  in  the  midst  of  the  most  beautiful  natural 
scenery,  is  not  charmed  by  anything  he  sees  on  the 
earth  or  in  the  sky.  To  him  all  Nature  is  like  an 
empty  barnyard,  in  which  there  is  nothing  to  inspire 
him  with  a  noble  thought  or  stir  him  with  a  generous 
emotion.  Another  person  living  in  the  same  vicinity 
sees  much  in  his  surroundings  to  admire  and  to  enjoy. 
He  looks  at  the  sunset  glows  with  delight ;  he  sees 
beauty  in  the  grass,  and  glory  in  the  flowers ;  he 
sees  with  admiration  and  awe  the  storm-clouds,  black 
and  terrible,  rushing  together  like  veritable  war-horses, 
or  piling  themselves  up  like  mountains,  reverberating 
with  the  artillery  of  heaven  and  tongued  with  fire; 
wherever  he  looks  nearly  every  prospect  pleases;  and 

7 


98         THE  ROAD  AND  THE  ROADSIDE. 

to  him  Nature,  like  the  Scriptures,  is  new  every  morn- 
ing and  new  every  night.  Such  a  person  is  more  likely 
to  be  a  better  neighbor,  a  better  citizen,  and  a  better 
Christian  than  one  who  has  not  the  love  of  Nature  in 
his  heart.  Kuskiii  says  :  "  The  love  of  Nature  is  an  inva- 
riable sign  of  goodness  of  heart  and  justice  of  moral  per- 
ception ;  that  in  proportion  to  the  degree  in  which  it  is 
felt,  will  probably  be  the  degree  in  which  all  nobleness 
and  beauty  of  character  will  also  be  felt ;  that  when  it 
is  absent  from  any  mind,  that  mind  in  many  other 
respects  is  hard,  worldly,  and  degraded."  The  love  of 
Nature  has  ever  been  characteristic  of  the  greatest  and 
the  noblest  minds.  To  Wordsworth  the  meanest  flower 
that  blows  gave  him  thoughts  too  deep  for  tears ;  and 
to  Christ  the  lily  of  the  field  was  more  beautifully 
arrayed  than  Solomon  in  all  his  glory.  Likewise  we 
often  find  that  two  travellers  will  pass  together  over  the 
same  route,  and  one  will  see  much  to  admire  and  to 
enjoy  by  the  way,  and  the  other  will  see  nothing  to 
admire  or  to  enjoy.  The  one  who  has  an  observing  eye, 
and  enjoys  beautiful  and  grand  natural  scenery,  sees  in 
every  nook  and  corner  by  the  way  some  lovely  flower  or 
comely  shrub  to  admire,  and,  like  Wordsworth,  — 

"  Beside  the  lake,  beneath  the  trees, 
Fluttering  and  dancing  in  the  breeze, 
He  sees  the  golden  daffodils." 

And  he  not  only  enjoys  the  present  sight,  but  he  enjoys 
the  scene  as  often  as  he  thinks  of  it  afterwards,  as  in 
imagination  he  views  the  scene  over  and  over  again,  — 


ENJOYMENT  OF  THE  ROAD.  99 

'*  For  oft  when  on  his  couch  he  lies 
In  vacant  or  in  pensive  mood, 
They  flash  upon  the  inward  eye 
Which  is  the  bliss  of  solitude  ; 
And  then  his  heart  with  pleasure  fills, 
And  dances  with  the  daffodils." 

And  in  the  common  and  unnoticed  grass  by  the  road- 
side or  in  the  field,  he  can  see  in  each  blade  a  system 
of  masonry  and  architecture  that  no  human  skill  has 
ever  been  able  to  equal  The  stem  is  very  slender,  but 
is  so  elastic  and  strong  that  it  waves  gracefully  in  the 
breeze  and  bends  to  the  earth  in  the  storm  without 
breaking,  and  assumes  an  upright  attitude  again.  It  is 
made  up  of  delicate  cells  and  perfect  and  intricate  chan- 
nels, through  which  hidden  currents  of  life  throb  and 
flow  as  mysteriously  as  the  vital  blood  through  the 
human  frame.  It  is  colored  with  an  emerald  tint  of 
such  beautiful  hues  that  it  has  been  the  despair  of  artists 
to  imitate  it  in  every  age.  Ages  and  ages  before  the 
human  hand  learned  its  cunning,  the  command  went 
forth  for  grass  to  bring  forth  seed  after  its  kind ;  and 
to-day  it  is  waving  gracefully  in  every  field,  and  crowned 
with  the  same  beautiful  flowers  and  tasselled  seed-vessels 
as  of  old.  Men  in  their  haughty  ambition  have  builded 
much  larger  structures.  They  have  erected  towers, 
pyramids,  obelisks,  spires,  monuments,  and  triumphal 
arches,  which  have  commanded  the  admiration  of  their 
builders  and  of  their  fellow-men  in  every  part  of  the 
world ;  but  every  principle  of  their  masonry  and  archi- 
tecture is  an  imitation  of  that  in  the  humblest  spear  of 
grass.  Thus  every  traveller  on  a  country  road  is  sur- 


100        THE  KOAD  AND  THE  EOADSIDE. 

refunded  by  monuments  more  ancient,  more  impressive, 
and  more  beautiful  than  the  ancient  or  modern  world 
can  show  as  the  production  of  human  hands. 

He  finds  much  enjoyment  in  the  study  of  the  forms 
and  characteristics  of  the  different  trees  by  the  wayside. 
If  the  road  passes  over  highland,  on  a  breezy  day  he 
can  look  down  upon  or  across  the  tops  of  undulating 
forest  trees,  whose  swaying  movements  remind  him  of 
the  waves  of  the  sea.  He  can  see  in  each  species  not  only 
a  variety  in  the  color  and  form  of  its  foliage,  but  some 
characteristic  which  reminds  him  of  some  human  being. 

o 

The  rugged  oak  or  apple  tree  recalls  to  his  mind  some 
sturdy  man,  of  great  strength  and  honesty  of  character, 
with  picturesque  but  awkward  manners.  The  grace- 
fully swaying  branches  of  the  stately  elm  or  weeping 
willow  remind  him  of  some  woman  whose  elegant  form 
and  manners  make  her  as  lovely  as  the  moon  and  as  beau- 
tiful as  light.  The  rapid  and  constant  motion  of  the 
foliage  of  the  poplar  and  the  aspen  reminds  him  of  some 
nervous  and  excitable  person  who  is  never  quiet  or  easy 
for  a  moment.  The  prim  spruce-tree  suggests  to  him 
some  person  of  formal  habits  and  primness  of  dress.  The 
symmetrical  maple  and  pine  remind  him  of  some  quiet 
and  dignified  character  who  is  well  balanced  and  rounded 
at  every  point.  The  patriarchal  tree  which  has  out- 
lived all  its  companions  and  stands  alone  with  few  and 
withered  branches,  but  still  raising  its  majestic  head  to 
heaven  as  if  in  supplication  for  blessings  on  the  earth, 
reminds  him  of  some  gray-haired  person  who,  full  of 
years  and  rich  in  faith,  after  a  well-spent  life  is  approach- 


ENJOYMENT  OF  THE  ROAD.  101 

ing  and  can  almost  see  the  other  side  of  the  river  which 
separates  this  life  from  the  eternal  world. 

If  he  has  a  taste  for  domestic  and  pastoral  scenery,  it 
is  gratified  as  he  views  the  green  pastures  and  meadows, 
the  waving  grain-fields,  and  the  occasional  gleam  of 
water  through  the  foliage.  Ever  and  anon  he  passes  by 
some  dwelling  where  the  charms  of  culture  have  been 
added  to  the  charms  of  Nature.  By  kind  treatment  the 
grass- plat  before  the  door  has  become  a  refreshing  piece 
of  verdure.  By  careful  pruning  and  training  the  trees 
on  the  lawn  have  become  objects  of  beauty,  and  cast 
their  graceful  shadows  over  the  velvety  greensward  be- 
neath. The  woodbine  tastefully  trained  over  the  porch, 
the  flower-bed  in  the  yard  brilliant  with  flowers,  and  the 
garden  and  the  fruit  orchard  in  the  field,  all  tend  to 
cheer  and  sanctify  human  life  in  such  an  abode.  Per- 
chance the  road  runs  by  some  rural  homestead  which 
reminds  him  of  his  own  ancestral  home,  humble  yet 
beautiful  to  him,  and  all  the  scenes  of  his  childhood 
come  vividly  to  mind  as  fond  recollection  presents  them 
to  view.  He  is  once  more  a  barefoot  boy,  and  all  is 
outward  sunshine  and  inward  joy.  He  slacks  his  thirst 
once  more  from  the  well  by  the  door  or  at  the  spring 
on  the  hillside ;  and  he  visits  again  the  old  familiar 
play-ground,  the  lane  through  which  the  cows  are 
driven,  the  brook  where  the  sheep  are  washed,  the  fish 
are  caught,  and  the  boys  go  in  swimming. 

When  the  road  leads  him  into  the  mountains  or  in 
sight  of  them,  he  is  charmed  by  their  majesty  and  awed 
by  their  sublimity.  A  mountain  panorama  presents 


102        THE  ROAD  AND  THE  ROADSIDE. 

all  the  characteristic  phases  of  Nature  and  all  the  mov- 
ing variation  of  the  atmosphere.  At  one  time  they 
are  cloud-capped  and  surrounded  with  fog,  and  then 
in  an  incredibly  short  time  they  are  glittering  in  a 
halo  of  sunlight.  As  one  beholds  their  majestic  heads, 
around  which  the  storms  of  centuries  have  beat,  dis- 
appear as  twilight  changes  into  night,  he  can  but  feel 
oppressed  with  the  gloom  and  melancholy  of  the  scene. 
But  in  the  morning,  when  — 

"  Night's  candles  are  burnt  out,  and  jocund  day 
Stands  tiptoe  on  the  misty  mountain-tops," 

he  can  but  conclude  with  Kuskin,  that  "mountain 
scenery  has  been  prepared  in  order  to  unite  as  far  as 
possible  and  in  the  closest  compass  every  means  of  de- 
lighting and  sanctifying  the  heart  of  man.  Mountains 
seem  to  have  been  built  for  the  human  race,  as  at  once 
their  schools  and  cathedrals,  full  of  treasures  of  illu- 
minated manuscript  for  the  scholar,  kindly  in  simple 
lessons  to  the  worker,  quiet  in  pale  cloisters  for  the 
thinker,  glowing  in  holiness  for  the  worshipper." 

Then,  again,  a  country  road  is  a  good  place  to  become 
acquainted  with  some  forms  of  animal  and  vegetable 
life.  The  odors  of  growing  vegetation,  the  movement 
of  squirrels  and  other  creatures,  and  the  song  of  birds, 
all  have  a  tendency  to  impress  one  with  the  idea  that 
the  material  world  is  animated  with  life.  And  when 
the  sun  pours  down  a  flood  of  glowing  sunlight,  and 
swathes  the  traveller  and  the  whole  world  with  its 
glowing  and  life-giving  beams,  he  realizes  that  the  sun 


ENJOYMENT  OF  THE  EOAD.  103 

is  the  source  of  every  material  blessing.  In  the  city 
people  know  in  a  general  way  that  the  sun  is  the  source 
of  heat  and  light,  and  that  he  adds  to  their  comfort  and 
convenience,  as  do  the  electric  light  and  the  fire  on 
the  hearth  ;  but  they  hardly  realize  that  his  rays  are 
necessary  for  their  existence,  to  say  nothing  of  their 
comfort,  for  even  a  week.  But  when  a  traveller  in 
the  morning  sees  all  animated  Nature  stirring  and 
rejoicing  with  the  throbbings  of  warmed  and  rejuve- 
nated life ;  when  he  looks  out  over  the  landscape  and 
sees  the  sun  raising  in  misty  vapors  the  water  which 
supplies  our  springs,  lakes,  and  streams,  and  refreshes 
the  earth  in  showers  of  rain,  he  realizes  that  the  sun 
is  not  only  the  fire  which  warms  the  world,  but  it  is 
also  the  mighty  hydraulic  engine  of  Nature. 

These  are  some  of  the  enjoyments  of  the  way ;  but 
every  thoughtful  and  observing  traveller  knows  that 
they  cannot  be  enumerated.  Like  Burroughs,  "he  is 
not  isolated,  but  one  with  things,  with  the  farms  and 
industries  on  either  hand.  The  vital,  universal  currents 
play  through  him.  He  knows  the  ground  is  alive :  he 
feels  the  pulses  of  the  wind,  and  reads  the  mute  lan- 
guage of  things.  His  sympathies  are  all  aroused ;  his 
senses  are  continually  reporting  messages  to  his  mind. 
Wind,  frost,  rain,  heat,  cold,  are  something  to  him.  He 
is  not  merely  a  spectator  of  the  panorama  of  Nature, 
but  a  participator  in  it.  He  experiences  the  country 
he  passes  through,  —  tastes  it,  feels  it,  absorbs  it." 

Neither  is  he  confined  to  the  material  demonstrations 
of  Nature  for  his  enjoyment  of  the  way.  Some  of  the 


104        THE  KOAD  AND  THE  ROADSIDE. 

greatest  sermons  and  speeches  have  been  thought  out 
on  the  road.  A  solitary  traveller  can  think  calmly  and 
thoughtfully  on  the  great  problems  of  life  and  death, 
and  can  learn  to  appreciate  the  fact  that  "  the  gods  ap- 
prove the  depth,  and  not  the  tumult,  of  the  soul." 


SIDEWALKS  AND   CROSSWALKS.  105 


CHAPTER   XX. 

SIDEWALKS  AND   CROSSWALKS. 

A  SIDEWALK  is  a  part  of  the  highway  and  .must  be 
kept  safe  and  convenient  at  all  seasons  of  the  year.1 
And  even  that  part  of  the  way  which  lies  between  the 
sidewalk  and  the  carriage-way  must  be  kept  in  such 
repair  that  foot-passengers  may  cross  any  part  thereof 
at  all  times  with  a  reasonable  degree  of  safety.  Yet  in 
some  respects  the  sidewalk  is  a  distinct  and  separate 
part  of  the  way,  and  when  its  limits  are  well  defined 
the  law  relating  to  it  is  also  distinct  and  well  defined. 
While  the  carriage-way  may  be  used  by  footmen  as 
well  as  by  the  drivers  of  teams,  it  does  not  follow  that 
the  sidewalk  may  be  used  by  the  drivers  of  vehicles 
except  for  the  purpose  of  crossing  to  adjoining  estates.2 
The  sidewalk  is  designed  for  the  use  of  foot-passengers, 
and  in  the  absence  of  strong  evidence  of  necessity,  it 
would  be  regarded  as  evidence  of  negligence  for  the 
driver  of  a  team  to  encroach  upon  its  limits.3 

It  is  public  policy  to  encourage  the  construction  of 
sidewalks  alongside  the  carriage-way  of  every  well  trav- 

1  3  Gush.  174;  110  Mass.  334;  40  N.  H.  410;  2  Hilt.  440. 

2  Pub.  St.  c.  53,  §  6;  130  Mass.  330;  6  Cusli.  524. 
8  130  Mass.  330. 


106        THE  ROAD  AND  THE  ROADSIDE. 

elled  road.  In  this  way  foot  and  carriage  passengers 
are  induced  to  travel  on  separate  parts  of  the  highway, 
and  thereby  accidents  and  confusion  are  avoided  and 
the  convenience  of  travellers  promoted.  To  this  end  no 
barbed  wire  fence  is  permitted  to  be  maintained  within 
six  feet  above  the  ground  along  any  sidewalk  located  on 
or  upon  any  public  street  or  highway,  under  penalty  of 
not  less  than  twenty  dollars  and  not  more  than  fifty 
dollars  for  such  offence ; l  and  to  this  end  the  law  al- 
lows every  person  owning  or  occupying  lands  adjoining 
a  highway  or  road  in  a  town  to  construct  a  sidewalk 
within  such  highway  or  road  and  along  the  line  of  such 
lands,  indicating  the  width  of  such  sidewalk  by  trees, 
posts,  or  curbstones  at  reasonable  distances  apart,  or  by 
a  railing  erected  thereto ;  and  where  a  sidewalk  is  so 
constructed,  whoever  rides  or  drives  a  horse  or  team 
upon  or  along  the  same  shall  forfeit  one  dollar,  to  be 
recovered  by  such  owner  or  occupant  in  an  action  of 
tort.2  But  while  this  statute  gives  this  privilege  to  the 
owner  or  occupant  of  land  bordering  upon  the  road,  it 
does  not  relieve  him  from  the  responsibility  incumbent 
upon  every  one  not  to  unreasonably  obstruct  the  high- 
way. The  highway  surveyors  or  the  public  road  officers 
still  have  as  much  authority  as  ever  over  the  highway 
and  the  sidewalk,  and  they  may  cause  the  posts,  trees, 
or  curbstones,  and  even  the  sidewalk  itself  to  be  re- 
moved at  any  time.8 

If  the  owner  or  occupant  in  building  a  sidewalk  ob- 

1  Mass.  Acts,  1884,  c.  272.  2  Pub.  St.  c.  53,  $  6. 

8  Pub.  St.  c.  53,  §  6 ;  121  Mass.  161. 


SIDEWALKS   AND   CROSSWALKS.  107 

structs  the  way  to  such  an  extent  as  to  make  travelling 
on  the  way  unsafe,  then  he  is  liable  directly  to  any 
party  injured  or  damaged  in  the  exercise  of  due  care ; 1 
and  if  a  town  or  city  is  compelled  to  pay  damages  on 
account  of  injuries  suffered  from  a  defect  or  obstruction 
caused  or  erected  by  him,  an  action  will  lie  in  favor  of 
such  city  or  town  against  him  for  the  amount  paid  on 
account  thereof,  including  costs  of  suit  in  case  he  had 
notice  of  the  action  and  an  opportunity  to  defend.2 

After  a  sidewalk  is  constructed  and  prepared  for 
public  use,  the  city  or  town  must  keep  it  safe  and  con- 
venient for  travel  at  all  seasons  of  the  year.3  The 
owners  or  occupants  of  adjoining  land  are  not  respon- 
sible to  individuals  for  injuries  resulting  to  them  from 
defects  in  sidewalks  not  caused  by  them,  or  by  means 
of  snow  and  ice  accumulated  by  natural  causes  thereon, 
although  by  ordinances  and  by-laws  of  cities  and  towns, 
it  is  made  the  duty  of  abutters,  under  prescribed  penal- 
ties, to  keep  the  sidewalks  adjoining  their  estates  in 
good  repair,  and  seasonably  to  remove  all  snow  and  ice 
therefrom.4  Such  ordinances  and  by-laws  are  valid, 
and  are  designed  and  intended  effectually  to  secure  the 
proper  application  of  whatever  labor  and  means  are 
necessary  to  keep  the  sidewalk  in  good  repair  and  clear 
of  snow  and  ice;  and  to  this  extent  they  relieve  the 

1  115  Mass.  86 ;  18  N.  Y.  79 ;  40  Barb.  380 ;  43  Iowa,  119 ;  23 
Pa.  St.  209. 

2  122  Mass.  100;  32  N.  H.  59 ;  102  Mass.  341 ;  2  Blackf.  418 ; 
66  Me.  585  ;  43  Iowa,  119. 

8  Pub.  St.  c.  52,  §  1;  13  Pick.  343. 
*  14  Gray,  249. 


108        THE  ROAD  AND  THE  EOADSIDE. 

cities  and  towns  of  the  charges  which  otherwise  they 
would  be  subjected  to,  but  they  in  no  degree  exoner- 
ate the  cities  and  towns  from  their  obligations  to  keep 
the  sidewalks  safe  and  convenient  for  travel  at  all 
times.1  This  obligation  is  primarily  upon  the  city  or 
town ;  but  in  consideration  of  this  burden,  the  city  of 
town  can  look  to  any  one  who  causes  a  defect  in  a 
sidewalk  to  recompense  it  for  any  loss  or  damage  it  is 
obliged  to  suffer  on  account  thereof.  But  any  individ- 
ual who  with  use  of  due  care  surfers  injury  or  damage 
by  reason  of  an  obstruction  or  a  defect  in  a  sidewalk 
caused  by  the  careless  instrumentality  of  another  per- 
son, may  maintain  an  action  against  such  person  for 
such  injury  or  damage.  Even  a  license  from  a  town  or 
city  to  construct  a  building  or  repair  premises,  does  not 
authorize  the  licensee  to  make  and  leave  insufficiently 
guarded  an  excavation  across  a  sidewalk  or  in  the  car- 
riage-way.2 For  one  to  leave  a  ditch  across  a  public 
sidewalk  uulighted  and  unguarded  at  night,  is  negli- 
gence as  a  matter  of  law,  and  evidence  of  permission 
from  the  public  authorities  is  no  defence.  And  one 
who  interferes  in  any  way  with  a  sidewalk,  and  leaves 
it  in  a  dangerous  condition,  is  liable,  irrespective  of  any 
license  from  the  public  officers  to  do  the  work  from 
which  the  injury  arose.3  But  as  the  license  is  no 
excuse  for  the  negligence  of  the  licensee,  so  likewise 
the  license  is  no  excuse  for  the  city  or  town,  in  case 
the  highway  becomes  unsafe  through  the  doings  of  the 

1  14  Gray,  249;  53  Iowa,  352;  5  Thomp.  &  C.  621. 
a  53  111.  212.  3  56  Barb.  119. 


SIDEWALKS  AND   CROSSWALKS.  109 

licensee;  for  it  is  its  duty  to  see  to  it  that  persons 
whom  it  authorizes  to  use  the  streets  shall  properly 
guard  and  protect  the  obstructions,  and  for  a  negligent 
failure  to  perform  this  duty  it  is  liable.1 

And  for  a  similar  reason,  a  town  or  city  is  liable  for 
injury  received  from  the  falling  of  a  defective  awning 
projected  over  and  across  a  sidewalk  by  the  owner  or 
occupant  of  a  building,  provided  it  is  supported  upon 
posts  at  the  outer  edge  of  the  sidewalk.2  But  for  an  in- 
jury received  in  a  similar  manner  from  the  falling  of  a 
defective  sign  projected  over  and  across  a  sidewalk,  but 
supported  entirely  by  an  iron  frame  attached  to  the 
building,  the  city  or  town  is  held  not  to  be  liable.3  So 
if  injury  is  received  from  the  fall  of  snow  or  ice  pro- 
jected from  the  roof  of  a  building,  and  overhanging  the 
sidewalk,  the  city  or  town  is  not  liable.4  But  if  the 
owner  or  occupant  suffers  ice  or  snow  to  remain  upon 
a  roof  subject  to  his  use  and  under  his  control  for  an 
unusual  and  unreasonable  time  after  he  has  notice  of 
its  accumulation  and  an  opportunity  to  remove  it,  and 
the  ice  and  snow  slide  off  and  injure  a  person  travel- 
ling with  due  care  in  a  highway,  he  is  liable  for  such 
injury,  even  if  the  roof  does  not  project  over  the 
sidewalk.5 

The  owner  or  occupant  of  land  adjoining  a  sidewalk 

1  71  Ind.  5 ;  4  Abt.  N.  Y.  Appt.  563;   27  Minn.  243  ;  11  Gray, 
154;  5  Thorap.  &  C.  579. 

2  13  Met.  292 ;  5  Allen,  98 ;  74  N.  Y.  264. 

8  104  Mass.  75 ;  8  K.  I.  319.  *  13  Gray,  59. 

6  101  Mass.  251 ;  22  Hun.  60. 


110        THE  ROAD  AND  THE  EOADSIDE. 

has  the  right  to  use  the  sidewalk  for  all  purposes  not 
inconsistent  with  the  right  of  the  public.  He  may 
build  on  his  land,  and  construct  his  cellar  in  such  a 
way  that  the  doors,  windows,  and  passage-ways  may  be 
reached  through  apertures  opening  in  the  sidewalks. 
He  may  construct  coal  vaults  under  the  sidewalk,  and, 
in  fact,  if  he  own  the  land,  he  may  use  the  entire  space 
beneath  the  walk  for  any  legitimate  purpose  not  incon- 
sistent with  the  rights  of  the  public,  provided  the  walk 
is  securely  and  safely  covered.1 

But  while  the  law  gives  this  privilege  to  the  owner 
or  occupant,  it  requires  him  to  use  the  privilege  with 
care,  and  with  an  eye  to  the  safety  and  convenience  of 
the  public;  for  if  individuals  sustain  injuries,  or  suffer 
loss  or  damage  peculiar  and  special  to  themselves,  from 
nuisances  created,  or  obstructions  unlawfully  placed  by 
another  person  in  a  public  highway,  they  may  maintain 
an  action  against  him  to  recover  compensation  therefor.2 
And  even  a  blind  man  has  the  right  to  walk  the  streets 
unattended,  provided  he  is  familiar  with  the  localities 
in  which  he  travels,  and  uses  as  much  care  as  can  be 
expected  of  one  deprived  of  sight.  When  the  occupants 
of  a  store  adjoining  a  sidewalk  in  Boston  opened  a 
trap-door  in  the  sidewalk  for  the  purpose  of  removing 
boxes  from  the  basement,  and  their  employees  were 
actually  engaged  in  the  work,  but  no  rail,  rope,  or  other 
barrier  was  put  up  to  keep  persons  from  walking  into 
the  hole,  and  nobody  was  there  with  special  instruc- 

1  40  Ind.  62 ;  3  Gush.  174. 

2  14  Gray,  251 ;  9  Ad.  &  EL  N.  R.  991. 


SIDEWALKS  AND   CROSSWALKS.  Ill 

tions  to  look  out  for  and  warn  persons  who  might  be 
approaching,  they  were  held  liable  for  the  injuries  of  a 
blind  man  who  walked  into  the  hole.  In  rendering  the 
decision,  the  court  remarked  that  although  totally  blind, 
he  has  a  right  to  rely  to  some  extent  that  pitfalls  would 
not  be  left  unguarded  in  the  sidewalk.1 

And  at  the  same  time  it  is  the  duty  of  a  city  or  town 
to  see  that  all  vaults  under  sidewalks  are  properly  con- 
structed, all  gratings  or  covers  properly  placed  and 
made  of  suitable  material,  and  all  openings  properly 
guarded  and  protected.2 

But  in  all  these  cases,  the  owner  or  occupant  of  the 
building  to  which  the  signs  or  awnings  are  attached,  or 
to  which  the  trap-doors  or  other  openings  lead,  is  liable 
primarily  to  the  party  receiving  the  injury,  and  seconda- 
rily to  the  town  or  city,  in  case  it  has  been  compelled 
to  pay  damages  for  such  injury.3 

The  question  may  arise,  Why  is  so  much  individual, 
corporate,  and  joint  liability  necessary  ?  The  answer 
is,  that  with  all  this  liability,  the  highways  and  side- 
walks are  not  kept  in  any  too  good  repair  for  the  con- 
venience and  safety  of  travellers ;  and  were  it  not  for 
this  spur  of  financial  liability,  the  most  of  our  roads 
and  public  walks  would  be  in  wretched  condition  the 
year  round.  Where  all  share  in  the  public  convenience 

1  143  Mass.  556  ;  37  N.  I.  568;  52  N.  H.  244. 

2  122  Mass.  223;  127  Mass.  329;  2  Daly,  243;  61  Bl.  287;  55 
Ga.  556;  15  Kan.  81;  1  Wils.  (Ind.)  129;  75  Mo.  672. 

3  9  Allen,  IS;   18  N.  Y.  79;   43  Iowa,  119;    100  Mass.  94;  4 
Cush.  277;   32  N.  H.  59;   109  Mass.  283;   66  Me.  585;   79  Ind. 
547;  52111.189;  14  Gray,  249. 


112         THE  ROAD  AND  THE  ROADSIDE. 

and  safety,  each  cue  should  be  willing  to  bear  his  pro- 
'portional  share  of  the  public  and  private  responsibility 
necessary  to  promote  the  greatest  good  of  the  greatest 
number. 

The  question  whether  a  sidewalk  or  crosswalk  is 
reasonably  safe  and  convenient  for  public  travel  at  any 
particular  time,  or  whether  the  person  injured  was  in 
the  exercise  of  due  care,  are  questions  for  the  jury,  in 
view  of  all  the  facts  and  the  surrounding  circumstances 
of  each  case.1 

Every  one,  whatever  may  be  his  age  or  condition,  has 
the  right  to  travel  on  a  sidewalk  for  any  purpose  of 
business,  convenience,  or  pleasure  while  engaged  in  any 
of  the  pursuits  or  duties  of  life.  But  a  city  or  town 
cannot  be  held  responsible  for  every  case  of  damage  to 
person  or  property  which  may  happen  by  reason  of  a 
defect  in  a  highway,  without  regard  to  the  use  to  which 
it  was  appropriated  at  the  time  of  the  accident  by  the 
person  injured.  A  juggler  or  gymnast  could  hardly  ex- 
pect to  be  regarded  as  a  traveller  entitled  to  recover  for 
injuries  sustained  by  him  in  the  exhibition  of  his  feats 
of  agility  and  strength  in  the  highway,  even  though 
they  were  occasioned  in  whole  or  in  part  by  a  defect  in 
the  road.  It  would  hardly  be  fair  to  hold  a  town  or 
city  liable  for  damages  occasioned  to  parties  using  the 
highway  solely  for  coasting  purposes.  And  it  has  been 
decided  that  a  boy  eleven  years  old,  who  was  playing 
"old  man  on  the  castle"  on  a  plank  sidewalk,  and 

1  128  Mass.  321;  57  Wis.  639  ;  46  Conn.  213;  52  N.  H.  221; 
39  Me.  193 ;  17  How.  161 ;  91  Pa.  St.  226. 


SIDEWALKS  AXD  CROSSWALKS.  113 

caught  his  foot  between  the  planks  and  twisted  it  in 
trying  to  extricate  it,  could  not  recover  for  injuries 
thus  received  while  using  the  street  for  a  playground.1 
And  it  has  been  decided  that  a  six-years-old  girl,  who, 
while  playing  "  tag  "  in  the  street,  fell  into  a  sewer  and 
was  injured,  could  not  recover  for  her  injuries;2  and 
likewise,  whejre  a  three-years-old  child,  being  permitted 
by  her  parents  to  go  out  for  the  purpose  of  walking, 
and  while  sitting  on  the  sidewalk,  sustained  an  injury 
by  the  falling  of  some  stones  intended  to  be  used  as 
curb-stones,  it  was  held  that  she  was  remediless.3  But 
the  court  in  8  Allen,  237,  says  that  it  would  not  be  un- 
derstood as  saying  that  a  child  who  receives  an  injury 
caused  by  a  defect  or  want  of  repair  in  a  road  or  street, 
while  passing  over  or  through  it,  would  be  barred  of  all 
remedy  against  a  town  merely  because,  at  the  time  of 
the  occurrence  of  the  accident,  he  was  also  engaged  in 
some  childish  sport  or  amusement.  And  it  has  been 
held  in  other  States,  that  a  city  or  town  cannot  escape 
liability  for  an  injury  sustained  by  a  child  in  use  of  the 
public  streets,  by  showing  that  he  was  playing  in  the 
street  and  not  travelling  in  it.4  And  whether  a  child, 
stopping  to  look  at  toys  in  a  shop-window,  is  a  travel- 
ler, is  a  proper  question  for  the  jury.5  As  before  said, 
every  one  has  the  right  to  walk  upon  a  sidewalk  for 
any  of  the  ordinary  purposes  of  travel,  but  the  law 
requires  him  to  walk  with  discretion  with  regard  to 
the  rights  of  others,  and  to  use  such  care  as  a  per- 

1  8  Allen,  237.  2  119  Mass.  472.  •  119  Mass.  491. 

4  75  Mo.  401;  91  N.  Y.  303.  •  121  Mass.  294. 

8 


114        THE  ROAD  AND  THE  ROADSIDE. 

son  of  ordinary  diligence  would  use  under  the  same 
circumstances. 

Just  what  amounts  to  a  defect,  is  usually  a  question 
of  fact  in  each  particular  case;  but  the  citation  of  a 
few  of  the  leading  cases  relative  to  defects  in  sidewalks, 
may  enable  the  reader  to  form  an  intelligent  opinion  as 
to  what  things  do  or  do  not  constitute  legal  defects. 
Mere  slipperiness  of  the  surface  of  a  sidewalk  or  way, 
properly  constructed,  and  of  no  unusual  slope,  by  rea- 
son of  ice,  whether  occasioned  by  the  ordinary  action  of 
rain,  snow,  or  frost,  or  by  such  travel  as  does  not  alter 
the  form  of  the  surface,  is  not  a  defect  for  which  a  town 
or  city  is  liable  to  an  action.1  But  a  sidewalk  con- 
structed of  such  form  and  slope  as  naturally  and  usu- 
ally to  induce  such  a  collection  or  formation  of  ice  or 
snow  as  to  be  peculiarly  dangerous  to  passengers,  may 
constitute  a  defect.2  And  ice  and  snow  suffered  to 
remain  upon  a  sidewalk  in  such  an  uneven  and  rounded 
form  that  a  person  cannot  walk  over  it,  using  due  care, 
without  danger  of  falling  down,  may  also  be  a  defect. 
Likewise,  ice  formed  in  a  sidewalk  by  the  freezing  of 
melted  snow  and  of  surface  water  flowing  from  a  hill 
by  the  side  of  the  highway,  may  be  a  defect.4  Al- 
though mere  slipperiness,  caused  by  smooth  ice  on  a 
sidewalk,  is  not  a  defect,  the  same  rule  is  held  not  to 
apply  to  a  cover  in  a  sidewalk  made  of  glass  and  iron, 
and  so  changed  by  wear  as  to  become  smooth  and  slip- 

1  100  Mass.  49;  12  Allen,  566;  72  Me.  249;   78  111.  347;   24 
Wis.  270.  2  109  Mass.  204. 

8  97  Mass.  263,  272.  4  109  Mass.  446 


SIDEWALKS  AND  CROSSWALKS.  115 

pery.  Smooth  and  slippery  ice  is  held  not  to  be  within 
the  meaning  of  the  statute,  because  it  results  from  at- 
mospheric influences,  and  it  would  be  impossible  for 
cities  and  towns  to  protect  the  sidewalks  from  the  icy 
slipperiness  caused  by  moisture  and  frost  in  such  a 
climate  as  ours.  But  the  slipperiness  of  covers  over 
holes  in  a  sidewalk  results,  either  from  original  faulty 
construction,  or  by  wear  of  the  material  by  footsteps  of 
travellers,  or  by  the  action  of  natural  causes,  such  as 
storms  or  floods,  and  is  within  the  statute  requiring 
cities  and  towns  to  keep  the  highways  in  suitable  con- 
dition for  travel.1 

Likewise  a  brittle  and  weak  flagstone  over  a  coal 
vault  in  a  sidewalk  may  be  a  defect,  although  its  de- 
fective condition  is  not  open  and  visible.2  And  a  hole 
in  a  plank  sidewalk,  or  a  hole  in  a  culvert  covered  with 
a  stone,  may  constitute  a  defect  for  which  a  city  or 
town  is  liable.3 

Although  it  is  very  convenient  to  have  public  streets 
lighted  at  night,  and  nearly  all  enterprising  cities  and 
villages  do  have  them  lighted,  yet  an  omission  to  light 
a  street  either  in  a  city  or  town  is  not  a  defect  for 
which  it  is  liable;  and  it  makes  no  difference  in  this 
respect  whether  there  is  a  by-law  or  ordinance  requir- 
ing the  road  commissioners  to  place  lights  there.4 

Neither  is  the  coasting  upon  handsleds  on  a  side- 
walk or  street  in  a  city  or  town  a  defect  or  want  of 

1  127  Mass.  329.  2  122  Mass.  223. 

8  105  Mass.  313;  116  Mass.  573. 
*  136  Mass.  419  ;  72  Ind.  196. 


116        THE  ROAD  AND  THE  ROADSIDE. 

repair  for  which  it  is  liable  to  a  person  struck  by  a 
moving  sled.1 

Whether  bolts,  gratings,  or  other  obstructions  reach- 
ing above  the  level  of  a  sidewalk,  and  whether  the 
depressions  and  elevations  of  a  walk  are  too  uneven  for 
safe  travelling,  are  severally  questions  of  fact  to  be 
decided  upon  the  evidence  and  circumstances  of  each 
case.2 

And  likewise  the  right  of  a  pedestrian  to  take  along 
the  sidewalk  with  him  a  perambulator,  velocipede,  hand- 
cart, wheelbarrow,  bath-chair,  or  other  vehicle  or  thing, 
is  a  question  of  mixed  fact  and  law  for  the  jury  and 
court.  In  Purple  v.  Greenfield,3  the  court  say  that  it 
cannot  be  ruled  as  a  matter  of  law  that  any  and  every 
use  of  any  kind  of  a  velocipede  upon  the  sidewalk  is 
unlawful.  And  in  Regina  v.  Mathias,4  the  jury  was 
left  to  decide,  and  failed  to  agree,  whether  a  peram- 
bulator eighteen  inches  wide  and  weighing  fourteen 
pounds  was  an  improper  vehicle  to  be  used  upon  a 
public  foot-way. 

As  before  indicated,5  cities  and  towns  are  authorized 
by  general  laws6  to  pass  by-laws  regulating  to  a  certain 
extent  the  use  of  streets  and  sidewalks.  They  may 
prescribe  under  what  conditions  and  for  what  purposes 
the  sidewalk  may  be  used ;  they  may  prohibit  the  use 

1  129  Mass.  534;  41  Vt.  271. 

2  116  Mass.  93;   6  Gusli.  524;   72  Me.  537;   27  Wis.  191;   43 
Iiid.  574 ;  66  N.  Y.  334.  «  138  Mass.  1. 

4  2  F.  &  F.  570.  6  Ante,  p.  60. 

6  Pub.  St.  c.  27,  §  15,  and  c.  53;  97  Mass.  221. 


SIDEWALKS  AND   CROSSWALKS.  117 

thereon  of  animals,  carriages,  bicycles,  wheelbarrows, 
handcarts,  or  other  vehicle ;  they  may  forbid  any  per- 
son to  stop  his  team  or  vehicle,  or  to  place  any  obstruc- 
tion of  any  kind  upon  any  flag  or  stepping-stones  or 
other  footwalk  across  any  street ;  they  may  prevent  the 
swinging  of  any  gate,  door,  or  sign  over  the  sidewalks, 
or  the  building  of  any  structure  or  thing  so  that  it  shall 
extend  into  or  over  the  same ;  and  they  may  interdict 
the  discharge  of  sink-water,  impure  water,  or  rain-water 
in  spouts  or  conductors  upon  or  over  the  sidewalks. 

In  case  of  accident  on  a  sidewalk,  the  person  injured 
must  give  notice  in  writing  within  thirty  days  to  the 
county,  town,  place,  or  persons  by  law  obliged  to  keep 
it  in  repair,  stating  the  time,  place,  and  cause  of  the 
injury  or  damage,  the  same  as  if  he  were  injured  or 
damaged  on  the  highway.1 

Whether  a  sidewalk  is  required  upon  any  street  in 
order  that  foot  travel  along  the  same  may  be  safe  and 
convenient,  depends  mainly  upon  the  location  of  the 
street  and  the  amount  of  travel  thereon.2  In  cities  and 
towns  which  accept  the  provisions  of  the  statutes  re- 
lating thereto,  the  public  authorities  may  establish  and 
grade  sidewalks  in  such  streets  as  in  their  judgment 
the  public  convenience  may  require,  with  or  without 
edge-stones,  and  cover  them  with  brick,  flat  stones,  con- 
crete, gravel,  or  other  appropriate  material,  and  may 
assess  the  abutters  on  such  sidewalks  one-half  the 
expense  of  the  same,  providing  such  assessment  does 
not  exceed  one  per  cent  of  the  valuation  of  his  abut- 

1  Pub.  St.  c.  52,  §§  19-21;  ante,  82.  2  30  Conn.  118. 


118         THE  EOAD  AND  THE  ROADSIDE. 

ting  estate ;  the  residue  to  be  paid  by  the  city  or  town 
where  the  sidewalk  is  located.  When  the  sidewalk 
has  been  constructed  and  graded  it  is  to  be  maintained 
at  the  public  expense.  And  no  sidewalk  constructed 
and  graded  shall  be  dug  up  or  obstructed  in  any  part 
thereof  without  the  consent  of  the  public  authorities.1 
No  city  or  town  can  maintain  an  action  at  law  to 
recover  of  an  abutter  the  amount  of  any  assessment 
upon  him.  The  assessment  is  a  lien  on  the  estate ;  and 
the  only  way  the  city  or  town  can  collect  the  same  is 
to  enforce  the  lieu  given  by  the  statute.2 

The  acts  giving  authority  to  cities  and  towns  to 
assess  one-half  the  expense  of  sidewalks  upon  the 
owners  of  abutting  estates,  are  not  unconstitutional 
because  no  right  of  appeal  to  a  jury  is  given  to  a  party 
aggrieved  by  the  doings  of  the  municipal  officers,  or 
because  they  do  not  fix  the  rule  of  proportion  to  be 
followed  in  making  the  assessments.  The  purpose  of 
the  legislation  is  to  provide  for  improvements  in  the 
public  streets,  the  expense  of  which  shall  be  partly 
borne  by  those  immediately  interested,  and  whose  es- 
tates are  benefited  thereby.  This  is  merely  a  mode 
of  taxation,  and  clearly  distinguishable  from  the  ex- 
ercise of  eminent  domain,  and  does  not  like  that 
require  that  a  right  of  appeal  to  a  jury  should  be 
secured.3 

But  the  mode  of  assessment  must  be  reasonable,  and 
the  amount  assessed  to  an  abutter  must  be  a  propor- 

1  Pub.  St.  c.  50,  §§  20-22.  2  114  Mass.  546. 

8  114  Mass.  388. 


SIDEWALKS   AND   CROSSWALKS.  119 

tionate  part  of  the  whole  expense.1  And  the  munici- 
pal officers  have  no  right  to  join  in  a  single  assess- 
ment the  expense  of  constructing  sidewalks  in  different 
streets.  Each  street  should  be  considered  separately, 
and  with  a  view  to  its  own  special  circumstances.  The 
power  to  treat  two  sidewalks  in  two  distinct  streets 
as  one,  for  the  purposes  of  assessment,  is  not  given 
by  the  statute.  Each  estate  is  liable  to  assessment, 
not  necessarily  for  the  expense  of  that  portion  of  the 
sidewalk  upon  which  it  adjoins  or  fronts,  but  accord- 
ing to  a  just  proportion  of  the  collective  amount  of 
all  the  expense  incurred  on  the  same  side  of  the  same 
street.2 

The  obligations  of  a  city  or  town  to  keep  the  high- 
ways within  its  limits  safe  and  convenient  for  travel- 
lers, does  not  necessarily  extend  to  the  whole  width  of 
the  highway  as  located.  When  sidewalks  are  not 
made,  it  is  sufficient  if  there  is  a  carriage-way  of  suit- 
able width,  properly  constructed  and  protected.3  But 
if  the  travelled  part  of  a  highway  is  allowed  to  become 
widened  so  as  to  be  equally  suitable  for  travel  the 
whole  width  of  the  road,  then  the  whole  width  must 
be  kept  safe  and  convenient.4  And  likewise,  if  any 
portion  of  a  highway  is  permitted  to  be  used  by  the 
public  as  a  sidewalk,  for  any  considerable  length  of 
time,  with  the  knowledge  and  acquiescence  of  the  town 
or  city  where  the  same  is  situated,  it  may  be  presumed 
to  be  a  recognized  part  of  the  wrought  and  finished 

1  124  Mass.  464.  2  106  Mass.  352. 

8  100  Mass.  255.  *  56  N.  H.  428. 


120        THE  KOAD  AND  THE  ROADSIDE. 

track  which  ought  to  be  kept  in  suitable  condition  for 
public  travel.1 

It  has  been  decided  in  England,  and  it  ought  to  be 
good  law  everywhere,  that  the  right  of  the  public  to  use 
a  highway  extends  to  the  whole  road,  and  not  merely 
to  the  part  used  as  via  trita  ;  and  therefore  ditches, 
fifteen  inches  wide  and  ten  inches  deep,  cut  completely 
across  the  strips  of  grass-land  at  the  sides  of  the  road, 
so  as  to  amount  to  a  danger  to  persons  walking  along 
the  strips,  amount  to  a  nuisance  and  obstruction,  which 
the  courts  on  application  will  order  to  be  abated.2 

Foot-paths  across  public  commons,  which  have  not 
been  laid  out  by  municipal  authority,  are  not  like  side- 
walks a  part  of  the  system  of  highways  in  any  city  or 
town;  and  a  city  or  town  is  not  liable  for  a  defect  in 
any  such  foot-path.3  It  has  been  decided  that  if  it  can 
be  said  that  there  is  any  duty  in  a  city  or  town  to  con- 
struct paths  over  public  commons,  or  to  keep  such  paths 
in  repair,  it  is  a  corporate  duty,  imposed  upon  it  as 
the  representative  and  agent  of  the  public  and  for  the 
public  benefit.  For  a  breach  of  such  a  duty  a  private 
action-  cannot  be  maintained  against  a  town  or  city, 
unless  such  action  is  given  by  statute.4 

But  foot-paths  outside  the  highway  which  have  been 
laid  out  by  municipal  authority  for  public  use,  must  be 

1  110  Mass.  334. 

2  50  Law  Times  Rep.  N.  s.  112. 

8  128  Mass.  569,  583;  102  Mass.  489;  120  Mass.  300. 
4  122  Mass.  344;  128  Mass.  5G7. 


SIDEWALKS  AND   CROSSWALKS.  121 

kept  in  suitable  condition  for  foot-passengers.1  And 
cross-walks,  like  sidewalks,  are  a  part  of  the  public 
highway ;  and  cities  and  towns  are  under  the  same  ob- 
ligations towards  them  as  they  are  towards  the  rest  of 
the  highway.2  If  the  municipal  corporation  neglects 
to  provide  crossings  at  places  required  to  meet  the 
needs  of  public  travel,  and  crossings  at  those  places 
are  established  by  long-continued  public  use,  the  cor- 
poration is  liable  for  injury  from  defects  therein.3 

1  120  Mass.  300;  Pub.  St.  c.  49,  §  83. 

2  60  Barb.  378  ;  43  How.  Pr.  366  ;  50  111.  61. 
8  134  Mass.  507;  59  N.  H.  24;  57  Wis.  630. 


122        THE  ROAD  AND  THE  ROADSIDE. 


CHAPTEE  XXL 

BICYCLES  AND  TRICYCLES. 

WITHIN  the  past  few  years  a  new  species  of  vehicle 
has  appeared  upon  the  highways  of  the  world.  Among 
the  marvellous  inventions  of  the  nineteenth  century, 
the  vehicle  of  the  road  has  shared  in  the  improve- 
ments which  have  everywhere  measured  the  progress 
of  mankind  in  mechanical  ingenuity  and  scientific  at- 
tainments. Good  roads  are  always  evidences  of  high 
civilization ;  and  with  good  roads  we  may  always  look 
for  convenient  and  artistic  methods  of  travel.  The 
noble  horse  has  been  used  for  travel  since  the  dawn 
of  human  history;  and,  like  man,  his  physical  and 
mental  capacity  is  probably  no  greater  now  than  three 
thousand  years  ago.  But  everything  else  used  for 
travel  has  been  wonderfully  improved  since  Joseph 
rode  in  Pharaoh's  chariot,  and  Jacob  and  his  family  in 
Pharaoh's  wagons.  But  of  all  the  carriages  ever  used 
for  the  conveyance  of  persons  along  the  ordinary  high- 
ways, the  modern  bicycle  and  tricycle  may  easily  claim 
the  first  place  for  lightness  of  Weight,  facility  of  man- 
agement, and  perfection  of  mechanism.  The  bicycle 
is  verily  something  new  under  the  sun.  It  was  never 
among  the  lost  arts.  It  weighs  from  twenty  to  sixty 


BICYCLES  AND  TEICYCLES.  123 

pounds,  and  costs  from  fifty  to  one  hundred  and  fifty 
dollars.  It  depends  upon  motion  for  its  balance.  It 
will  not  stand  upright  for  a  single  moment  at  rest,  but 
when  kept  rolling  it  maintains  a  perfect  equilibrium. 
It  is,  according  to  Justice  Mellor's  idea,  a  compound  of 
man  and  wheels,  —  a  kind  of  centaur.  When  it  passes 
a  foot  or  carriage  passenger  at  night,  it  flits  by  as  noise- 
lessly as  a  ghostly  traveller,  as  swiftly  as  a  winged 
word  of  Homer,  and  as  awe-inspiring  as  Elijah  in  a 
chariot  of  fire.  As  it  spins  around  the  world,  should 
the  law  of  gravitation  become  relaxed  sufficiently  to 
let  it  move  off  into  space,  we  should  expect  it  to  travel 
on  in  a  majestic  manner  among  the  planets  and  the 
stars. 

Besides  being  a  convenient  and  cheap  mode  of  travel, 
the  use  of  the  bicycle,  swing-bicycle,  tricycle,  and  tan- 
dem-tricycle is  highly  beneficial  to  the  public  in  other 
respects.  It  will  have  a  tendency  to  cause  the  public 
roads  to  be  kept  in  suitable  condition  for  carriage  travel. 
Every  rider  of  one  of  these  vehicles  will  learn  by  expe- 
rience the  superiority  of  a  smooth  and  hard  road  over 
a  rough  and  sandy  one,  and  of  a  well-graded  road  over 
a  steep-graded  one ;  and,  consequently,  he  will  use  his 
influence  for  the  improvement  of  the  highways  both 
for  himself  and  for  the  horses  and  carriages  of  other 
persons.  And,  moreover,  it  will  improve  the  health 
and  physical  endurance  of  many  fragile  persons,  and  be 
promotive  of  physical  culture  generally.  It  is  an  eco- 
nomic method  of  travelling,  as  it  costs  much  less  to 
keep  one  housed  and  in  good  repair  than  it  does  to_keep 


124        THE  ROAD  AND  THE  ROADSIDE. 

and  care  for  a  horse  and  carriage.  It  is  well  adapted  to 
afford  intelligent  exercise  suitable  to  human  needs,  and 
of  a  kind  which  is  at  once  fascinating,  invigorating,  and 
graceful.  In  the  education  of  the  people  into  the  belief 
that  the  cultivation  of  bodily  health  is  as  essential  and 
profitable  as  the  cultivation  of  mental  development,  it 
is  undoubtedly  destined  to  play  an  important  part. 
The  use  of  these  vehicles  has  been  greatly  developed 
within  a  few  years  in  all  civilized  countries.  They 
have  undoubtedly  come  to  stay,  and  ere  long  they  will 
be  as  common  on  all  well-travelled  thoroughfares  as  the 
ordinary  horse-carriages  and  wagons. 

As  they  come  into  general  use,  the  legal  status  of 
the  machines  on  the  highway  becomes  an  interesting 
and  important  question  to  their  owners  and  the  public 
at  large.  There  is  very  little  statute  or  adjudicated 
law  bearing  directly  upon  their  use  in  our  public  streets 
and  ways,  but  no  doubt  many  of  the  well-established 
principles  of  our  road  law  are  as  applicable  to  them  as 
to  the  ordinary  road  vehicle.  Every  new  invention  or 
discovery  produces  changes  in  the  law.  The  main 
principles  of  the  law  remain  substantially  the  same 
from  one  generation  to  another ;  but  new  applications 
and  modifications  of  these  principles  are  constantly 
necessitated  by  new  inventions  and  discoveries  in  the 
mechanic  arts,  which  change  the  habits  and  modes  of 
life  of  the  people.  The  fact  that  bicycles  and  tricycles 
have  come  so  suddenly  into  every-day  use  without 
more  acts  relating  to  them  on  the  statute  books,  or 
adjudicated  cases  in  law  reports,  indicates  that  their 


BICYCLES  AND   TRICYCLES.  125 

use  is  not  attended  with  much  inconvenience  to  the 
public,  or  injury  to  life,  or  damage  to  property.  There 
seems  to  be  little  disposition  in  the  State  legislatures 
of  this  country,  or  in  the  parliaments  of  Great  Brit- 
ain and  her  colonies,  to  encumber  the  statute  books 
with  special  legislation  concerning  their  use,  and  very 
likely  cycle  law  will  be  established  slowly,  from  prece- 
dent to  precedent  in  the  courts,  without  the  aid  of 
legislative  enactments. 

If  they  are  treated  in  law  the  same  as  ordinary  road 
vehicles  now  known  to  the  law,  then  their  use  is  already 
regulated  by  the  customs  and  usages  of  generations 
past,  and  the  principles  of  law  applicable  to  them  have 
been  settled  by  the  decisions  of  the  highest  courts  of 
the  world.  But  if  they  are  considered  in  law  not  as 
ordinary  road  vehicles,  but  with  special  favor  or  dis- 
favor, according  to  the  varying  circumstances  of  each 
case,  then  there  will  be  confusion  and  uncertainty  in 
the  law  relative  to  their  use.  Is  there  any  good  rea- 
son why  they  should  not  be  treated  the  same  as  ordi- 
nary road  vehicles  ?  Some  of  the  enthusiastic  votaries 
of  the  cycle  have  been  disposed  to  regard  the  machine 
as  the  fit  accompaniment  of  every  wheelman  on  all  oc- 
casions and  in  all  places,  and  to  this  end  they  have 
invoked  the  aid  of  the  Constitution  of  the  nation  and 
those  of  the  several  States  which  guarantee  the  protec- 
tion of  the  property  and  life  of  every  well-behaved 
individual.  They  have  claimed  the  right  to  ride  their 
wheeled  steeds  on  the  sidewalks  of  cities,  and  in  all 
public  parks  and  commons;  and  because  they  have 


126        THE  ROAD  AND  THE  EOADSIDE. 

been  prohibited  from  so  doing  by  some  city  ordinances 
and  by  some  park  commissioners,  they  have  thought 
their  rights  and  privileges  were  unjustly  abridged. 
The  use  of  cycles  under  certain  restrictions  on  side- 
walks is  permitted  by  ordinance  in  Paris  and  some 
other  European  cities,  and  such  use  is  not  specifically 
prohibited  by  statute  in  most  of  the  cities  of  this  coun- 
try and  of  the  English-speaking  cities  of  the  world. 
Neither  is  there  a  special  prohibition  of  the  use  on 
sidewalks  of  carriages,  wagons,  sleighs,  and  other  road 
vehicles  and  animals;  but  there  is  a  clear  distinction 
in  law  between  the  right  to  use  a  sidewalk  on  foot  and 
the  right  to  use  it  with  horses  and  cattle  and  carriages.1 
Sidewalks  are  chiefly  and  primarily  intended  for  the 
use  of  foot-passengers,  and  it  seems  reasonable  that  the 
use  of  them  should  be  forbidden  to  bicycles,  tricycles, 
and  other  vehicles.  It  seems  no  court  of  recognized 
authority  has  ever  decided,  as  a  matter  of  law,  that  a 
bicycle  or  tricycle  cannot  be  used  on  a  sidewalk ;  and 
should  the  question  arise,  it  would  probably  be  left  to 
the  jury  to  say  whether  the  sidewalk  had  been  improp- 
erly used,  under  all  the  circumstances  of  the  case.2 
Bicycles  and  tricycles  are  permitted  to  be  used  in  Fair- 
mount  Park,  Philadelphia,  and  in  many  of  the  other 
public  parks  and  commons  of  this  country.  But  their 
use  is  not  allowed  in  some  public  parks  and  commons. 
And  where  their  presence  is  forbidden,  by  parties  duly 
authorized  by  legislative  authority,  the  courts  sustain 
their  decisions  as  within  their  discretionary  power. 
1  130  Mass.  330,  2  2  Foster  &  Fiiikson,  570 ;  138  Mass.  1. 


BICYCLES  AND  TRICYCLES.  127 

In  England,  by  Act  of  Parliament,1  the  county  au- 
thorities are  given  power  to  regulate  the  use  of  bicycles 
on  the  highways,  and  any  violation  of  their  rules  and 
regulations  relating  thereto  is  punishable  by  a  fine  not 
exceeding  two  pounds. 

In  this,  and  many  other  States  of  the  Union,  cities 
and  towns  have  authority  to  regulate  by  by-laws  the 
use  of  the  public  ways  therein  within  the  limits  pre- 
scribed by  the  legislature.2  They  may  prescribe  the 
maximum  rate  of  speed  at  which  animals  and  vehicles 
shall  be  driven,  and  also  prohibit  their  use  upon  the 
sidewalks  and  their  stopping  upon  the  crosswalks.  This 
authority  is  vested  in  the  county  commissioners  in  some 
of  the  States,  and  frequently  park  commissioners  and 
trustees  of  cemeteries  are  clothed  with  power  to  regulate 
and  prescribe  the  use  and  management  of  animals  and 
vehicles  within  the  territory  under  their  control. 

In  the  matter  of  Wright  and  others,3  it  was  decided 
that  the  Park  Commissioners  of  New  York  City  have 
power  to  adopt  ordinances  prohibiting  the  use  of  bicy- 
cles in  the  Central  and  other  city  parks.  The  Act  of 
the  Legislature  creating  the  board  of  commissioners, 
gave  them  the  full  and  exclusive  power  to  govern,  man- 
age, and  direct  the  said  parks ;  to  pass  ordinances  for 
the  regulation  and  government  thereof.  The  parties 
under  arrest  for  violating  the  ordinance  of  the  commis- 
sion, claimed  that  the  ordinance  was  unreasonable  and 
illegal.  The  court,  after  reviewing  the  case,  came  to 

1  41  &  42  Victoria,  c.  77,  §  26.      2  Pub.  St.  c.  27,  §  15  and  c.  53. 
8  36  N.  Y.  357. 


128        THE  ROAD  AND  THE  ROADSIDE. 

the  conclusion  that  the  ordinance  was  within  the  dis- 
cretionary power  of  the  commissioners,  and  that  the 
court  cannot  say,  as  matter  of  law  or  fact,  that  it  is 
unreasonable. 

Most  of  the  existing  statutes  relating  to  highways 
and  their  use  were  enacted  before  the  bicycle  and  tri- 
cycle were  known,  or  before  they  had  come  into  gen- 
eral use,  and  therefore  they  have  to  be  interpreted  by 
the  courts  in  their  application  to  these  vehicles,  in  view 
of  the  object  of  each  statute,  rather  than  by  any  specific 
use  of  the  language  therein.  So  there  may  lurk  in 
these  old  statutes  possibilities  of  safety,  and  perchance 
of  danger,  to  the  cyclists  little  dreamed  of  by  the  au- 
thors of  the  acts. 

In  1879,  one  Goodwin  rode  his  bicycle  at  such  a 
furious  pace  through  a  public  street  in  London  that  he 
knocked  down  and  injured  one  Taylor.  Taylor  sought 
redress  at  law,  and  the  magistrates  of  Highgate  con- 
victed Goodwin  for  furiously  driving  a  carriage  in  a 
highway,  under  an  Act  of  Parliament  passed  in  1836, 
which  prohibits  any  person  from  riding  any  horse  or 
other  animal  or  driving  any  carriage  so  furiously  as  to 
endanger  the  life  or  limb  of  any  passenger.  Goodwin 
having  succeeded  in  riding  his  bicycle  at  a  breakneck 
speed  through  a  public  street,  appealed  the  case,  and 
undertook  to  drive  his  bicycle  through  the  Act  of  Par- 
liament. His  counsel  argued  before  the  Queen's  Bench 
that  a  bicycle  is  not  a  "  carriage  "  within  the  meaning 
of  the  act,  nor  can  it  be  said  to  be  "driven"  in  the 
ordinary  sense  of  the  term.  Bicycles  were  unknown 


BICYCLES  AND  TRICYCLES.  129 

when  the  act  was  passed.  The  act  refers  to  carriages 
drawn  by  horses  or  other  animals.  A  person  is  never 
said  to  "  drive  "  a  bicycle.  The  fact  that  a  bicycle  has 
wheels  does  not  make  it  a  carriage.  A  bath-chair  or 
wheelbarrow  would  not  be  a  carriage  within  the  act. 
It  would  be  far  too  wide  a  construction  to  hold  that 
every  apparatus  by  which  a  man  is  carried  is  a  "  car- 
riage." Wheeled  skates  would  be  a  carriage  under  such 
construction. 

The  Court  of  Queen's  Bench  decided  that  Goodwin 
had  been  properly  convicted,  and  said :  "  It  may  be  that 
bicycles  were  unknown  at  the  time  the  act  was  passed, 
but  the  legislature  clearly  desired  to  prohibit  the  use  of 
*  any  sort  of  carriage '  in  a  manner  dangerous  to  the  life 
and  limb  of  any  passenger.  The  word  'carriage'  is 
large  enough  to  include  a  machine,  such  as  a  bicycle, 
which  carries  the  person  who  gets  upon  it,  and  such 
person  may  be  said  to  *  drive '  it.  He  guides  as  well  as 
propels  it,  and  may  be  said  to  drive  it  as  an  engine- 
driver  is  said  to  drive  an  engine.  The  furious  driving 
of  a  bicycle  is  clearly  within  the  mischief  of  the  act, 
and  seems  to  be  within  the  meaning  of  the  words,  giv- 
ing them  a  reasonable  construction."  Thus  it  has  been 
decided  that  a  tricycle  capable  of  being  worked  by 
steam  as  well  as  by  treadles,  is  a  locomotive  within  the 
meaning  of  the  Locomotives  Act  of  Parliament,  1865, 
which  provides  that  "every  locomotive  propelled  by 
steam  or  any  other  than  animal  power  on  any  turnpike 
road  or  public  highway,  shall  be  worked  "  according  to 
the  rules  and  regulations  thereinafter  contained.  Sir 


130        THE  ROAD  AND  THE  ROADSIDE. 

Thomas  Perky ns,  Bart.,  invented  the  motor  tricycle 
after  1865,  and  used  it  upon  the  public  highways 
without  complying  with  the  rules  and  regulations  of 
the  Locomotives  Act.  It  weighed  about  two  hundred 
pounds,  and  the  tires  of  the  wheels  were  of  India-rub- 
ber, and  were  about  one  and  a  half  inches  in  width.  It 
was  capable  of  being  propelled  by  the  feet  of  the  rider, 
like  the  ordinary  tricycle,  or  by  steam  as  an  auxiliary, 
or  by  steam  alone.  There  was  no  smoke,  no  escape  of 
steam  into  the  air,  nor  anything  to  indicate  that  it  was 
being  worked  by  steam,  nor  anything  which  could 
frighten  horses,  or  cause  danger  to  the  public  using  the 
highways  beyond  any  ordinary  tricycle.  Lord  Cole- 
ridge, C.  J.,  in  rendering  the  decision  of  the  Court  of 
Queen's  Bench,  said :  "  It  seems  scarcely  necessary  to 
do  more  than  to  read  this  description,  in  order  to  show 
that  the  tricycle  in  question  comes  within  the  words 
of  the  above  statutes  as  being  '  a  locomotive  propelled 
by  steam,  or  any  other  than  animal  power.'  It  cannot 
be  less  within  this  description  because  it  is  capable  of 
propulsion  in  the  ordinary  way  by  the  foot  of  the  rider, 
it  being  expressly  found  in  the  case  that  the  steam 
power  was  sufficiently  powerful  to  move  it  if  desired, 
without  the  foot  motion.  It  was  argued,  however,  on  be- 
half of  the  appellant,  that  such  a  machine  could  not  have 
been  within  the  contemplation  of  the  framers  of  the  stat- 
utes in  question,  which  apparently  were  intended  to  be 
directed  against  the  use  of  locomotives  larger  in  size 
and  heavier  in  weight,  and  therefore  more  dangerous  to 
persons  using  the  public  highway,  than  the  locomotive 


BICYCLES  AND  TRICYCLES.  131 

in  question.  It  is  probable  that  the  statutes  in  ques- 
tion were  not  pointed  against  the  specific  form  of  loco- 
motive which  is  described  in  this  case.  Indeed,  such 
a  locomotive  was  not  known  when  they  were  passed, 
and  possibly  not  contemplated.  As,  however,  it  comes 
within  the  very  words  of  the  statutes,  it  seems  to  us 
that  we  cannot  on  any  true  ground  of  construction  ex- 
clude it  from  their  operation ;  and  it  may  be  observed, 
that  even  if  the  fullest  scope  be  given  to  this  argument, 
the  explanation  that  the  principle  of  invention  was 
capable  of  extension  to  larger  carriages,  would  show 
that  a  locomotive  similar  in  construction  and  principle 
to  that  which  is  the  subject-matter  of  this  case,  might, 
by  reason  of  its  size  and  power,  become  much  more 
dangerous ;  and  if  this  be  so,  the  question  to  be  consid- 
ered in  each  case  would  not  be  whether  the  locomotive 
in  question  properly  came  within  the  language  of  the 
statutes,  but  whether,  by  reason  of  the  size  and  weight 
of  the  particular  machine,  it  came  within  the  mischief 
supposed  to  be  contemplated,  which  shows  that  such 
an  argument  is  vicious." l 

In  North  Carolina  the  charter  of  the  Wilmington 
and  Coast  Turnpike  Company  has  been  so  amended  by 
legislative  enactment  that  "  no  person  shall  use  upon 
the  roads  of  said  company  a  bicycle  or  tricycle,  or  other 
non-horse  vehicle,  without  the  express  permission  of 
the  superintendent  of  said  road." 

The  wheelmen  of  Wilmington  have  brought  the  mat- 
ter before  the  Supreme  Court  of  that  State,  where  it  is 
1  7  Q.  B.  D.  317. 


132        THE  ROAD  AND  THE  KOADSIDE. 

still  waiting  decision  on  questions  of  constitutionality. 
But  in  England  it  has  been  decided  that  wheelmen 
have  a  right  to  travel  the  turnpike  roads  with  their 
cycle  vehicles,  and  that,  too,  without  paying  toll.  In 
Williams  v.  Ellis,1  the  court  in  deciding  that  a  bicycle 
is  not  a  "carriage"  within  the  meaning  of  the  Turn- 
pike Act,  said,  that  "  when  the  words  of  the  legislature 
do  not  directly  apply  to  the  particular  case,  we  must 
consider  the  object  of  the  Act;  and  therefore  in  Tay- 
lor v.  Goodwin,2  it  was  held  that  the  words  '  furiously 
driving  any  sort  of  carriage/  applied  to  a  bicycle ;  for 
it  was  the  object  of  the  act  to  prevent  injury  from  the 
furious  driving  of  any  kind  of  vehicle. 

"The  present  act  begins  with  imposing  a  toll  upon 
particular  carriages,  which  are  described, '  or  other  such, 
carriage ; '  and  then  imposes  a  further  toll  upon  '  every 
carriage  of  whatever  description  and  for  whatever  pur- 
pose, impelled  by  steam  or  any  other  power  not  being 
that  of  horses/  The  carriages  here  referred  to  must  be 
carriages  ejusdem  generis  with  the  carriages  previously 
specified.  If  a  bicycle  were  held  liable  for  toll  as  a 
carriage,  I  do  not  know  where  we  could  draw  the  line." 

In  Kentucky,  by  an  act  of  the  legislature,  bicycles 
are  not  permitted  to  be  used  in  certain  counties  of  the 
State ;  and  in  Oregon,  by  legislative  enactment,  every 
bicycle  rider  is  required  to  dismount  one  hundred  yards 
in  front  of  an  approaching  team,  and  to  remain  so  until 
it  has  passed.  It  is  easy  to  conceive  that  bicycling  in 
that  State,  on  a-  well-travelled  thoroughfare,  would  not 

i  5  Q.  B.  D.  175.  2  4  Q.  B.  D.  228. 


BICYCLES  AND   TRICYCLES.  133 

be  the  mode  of  travel  selected  by  those  in  a  hurry; 
nor  would  it  be  a  favorite  method  of  recreation  for  those 
not  blessed  with  everlasting  patience.  Whether  this 
legislation  was  prompted  by  the  timidity  of  the  female 
voters  of  that  State,  or  by  the  natural  timidity  of  the 
horses  in  that  part  of  the  country,  it  does  not  appear  in 
the  legislative  act ;  but  whatever  was  the  moving  cause 
of  the  act,  it  will  not  encumber  the  statutes  of  that 
State  after  the  horses  have  seen  a  few  bicycles  and  dis- 
covered that  they  will  not  harm  them ;  and  especially 
after  the  women  have  enjoyed  a  few  rides  on  tricycles 
or  tandem  tricycles,  and  have  discovered  the  benefi- 
cial effects  of  the  use  of  the  bicycle  upon  their  hus- 
bands, sons,  and  male  friends.  A  recognized  legal 
authority  on  cycle  law,1  in  a  recent  article  on  "  Legisla- 
tion as  to  Highways,"  well  remarks :  "  The  key  to  the 
law  of  bicycling,  not  only  constitutional,  but  legislative, 
which  we  now  come  to  consider,  lies  in  the  fact  that 
the  bicycle  is  a  carriage.  Plainly  as  this  simple  fact 
should  appear  to  all,  it  seems  to  be  left  out  of  sight  still 
by  many.  No  correct  definition  of  carriage  or  vehicle 
can  be  found  or  framed,  or  could  have  been  found  or 
framed  fifty  years  or  a  century  ago,  that  will  not  in- 
clude the  most  modern  bicycle.  Although  judicial  and 
municipal  law  has  recognized  and  expressed  this  fact 
both  in  this  country  and  in  Great  Britain,  it  is  one  of 
those  ineliminable  facts  in  the  nature  of  things  that 
cannot  be  made  or  changed  by  any  legislative  or  official 
decision,  any  more  than  the  fact  that '  Maud  S.'  or  an 
1  Charles  E.  Pratt,  Esq. 


134        THE  ROAD  AND  THE  EOADSIDE. 

Alderney  bull  are  domestic  animals.  The  chaise  and 
the  velocipede  of  Holmes's  and  Sumner's  early  days 
were  not  the  village  cart  or  the  tricycle  of  to-day,  but 
they  were  no  more  and  no  less  carriages.  Nor  does  it 
require  reference  to  exceptional  performances,  like  the 
European  tours  of  the  Pennells,  Laumaille's  thirty  thou- 
sand leagues  in  Europe,  or  Stevens's  twenty  thousand 
miles  in  three  continents,  to  make  the  fact  appreciable, 
when  the  bicycle,  as  a  matter  of  common  knowledge,  is 
put  by  thousands  in  most  of  our  States  to  every  use  of 
a  wagon,  save  that  of  hitching  a  horse  to  it,  perhaps^  of 
painting  signs  on  it.  Since  the  conservative  English 
High  Court  of  Justice,  Queen's  Bench  Division,  could 
find  and  hold  eight  years  ago  that  the  statutes  of  Wil- 
liam IV.  included  bicycles  in  their  provisions  concern- 
ing '  carriages/  we  may  safely  assume  that  the  highway 
statutes  of  our  States  also  relate  to  bicycles.  In  this, 
however,  we  are  further  warranted  by  the  decision  of 
our  own  tribunals,  from  justices  of  the  peace  to  the  Su- 
preme Courts,  constituted  interpreters  of  our  statutes, 
that  the  bicycle  and  tricycle  being  carriages,  they  and 
their  riders  are  subject  to  the  same  laws  as  other  car- 
riages and  drivers.  Only  make  the  wheelmen  and  the 
non-wheelmen  appreciate  this  fact  at  its  value,  that  the 
bicycle  is  a  carriage,  and  the  bicycler  a  wagoner,  and 
most  of  the  misunderstandings  and  friction  will  disap- 
pear. The  present  status  of  wheelmen  as  to  rights  and 
remedies  is  then  easily  understood." 

When  the  various  kinds  of  road  cycles  are  recognized 
as  vehicles  or  carnages  within  the  meaning  of  the  stat- 


BICYCLES  AND  TRICYCLES.  135 

utes  relating  to  highways,  it  will  be  easy  to  define  the 
legal  rights  and  duties  of  wheelmen  in  the  use  of  their 
vehicles  upon  the  public  roads.  "  The  law  of  the  road  " 
and  the  decisions  of  the  courts  relating  thereto  will  be 
applicable  to  them.  Under  this  law  they  are  bound  to 
use  on  the  highway  only  such  cycle  carriages  as  are  in  a 
safe  and  road  worthy  condition ;  they  must  ride  and  drive 
them  with  due  care  and  discretion,  and  at  a  moderate  rate 
of  speed ;  they  must  be  careful  not  to  collide  with  other 
vehicles  or  persons,  and  to  use  the  same  care  in  crossing 
foot-walks  as  is  required  of  carriage-drivers ;  they  must 
turn  to  the  right  on  meeting  other  vehicles  or  teams, 
and  pass  by  them  on  the  left  side  when  going  in  the 
same  direction ;  and  they  must  keep  off  the  sidewalks 
in  streets,  and  foot-ways  in  squares,  parks,  and  com- 
mons; and  in  fine,  generally,  not  go  where  it  would 
not  be  proper  and  allowable  to  go  with  a  horse  and 
carriage. 

If  a  wheelman  meets  a  horse  which  is  frightened  at 
his  compound  machine  of  "  man  and  wheels,"  he  ought 
to  stop  and  do  his  best  to  prevent  an  accident,  the  same 
as  the  driver  of  a  top  carriage  would  be  required  to  do 
should  he  meet  a  horse  afraid  of  a  top  carriage ;  but 
should  a  horse  become  frightened  at  his  vehicle  and  run 
away  without  any  fault  on  his  part,  he  would  not  be 
liable  for  any  injuries  suffered  or  any  damages  incurred, 
because  beyond  question  the  bicycle  and  tricycle  are 
suitable  vehicles  to  use  on  a  way  prepared  and  intended 
for  public  travel  in  the  present  state  of  our  civilization. 
A  tricycle  is  probably  entitled  to  half  the  road  on 


136        THE  KOAD  AND  THE  ROADSIDE. 

meeting  animal  teams,  but  whether  the  same  rule  should 
be  applied  to  the  bicycle  is  an  open  question.  The 
statutes  requiring  the  drivers  of  carriages  or  other  road 
vehicles  to  yield  one  half  the  road  upon  meeting  other 
carriages  or  vehicles,  were  passed  before  the  ordinary 
legislator  dreamed  that  a  vehicle  no  wider  than  a 
single  wheel  could  ever  be  used  for  the  conveyance  of 
man  or  property.  At  the  time  these  statutes  were 
passed  the  'ordinary  road  vehicles  varied  very  little  in 
width,  and  the  objects  of  the  statutes  were  to  secure  to 
travellers  equal  rights  in  the  highway,  and  their  neces- 
sities were  the  basis  of  those  rights.  Now,  by  a  won- 
derful and  new  invention,  one  traveller  is  provided 
with  a  vehicle  which  needs  only  a  small  portion  of  the 
road  for  his  reasonable  accommodation,  and  therefore 
the  courts  in  the  interpretation  of  these  statutes  may 
decide  that,  in  the  light  of  the  reasons  and  objects  of 
their  passage,  a  bicycle  is  only  entitled  to  a  reasonable 
portion  of  the  road. 


INDEX. 


ACCIDENT, 

no  liability  for  inevitable,  44. 

notice  required,  81,  117. 
ANIMALS, 

to  be  guarded  and  restrained  in  highway,  58,  59,  66. 

by-laws  relating  to,  60. 

may  be  grazed  in  highway  by  owner  of  the  fee,  65. 

affected  by  contagious  diseases,  not  allowed  in  highway,  74,  75. 

barking  dogs  poor  property,  82. 

ASSESSMENT, 

of  damages  by  town  or  county  authorities,  31. 

for  the  construction  of  sidewalks,  117,  118. 
AWNINGS,  liability  for  defective,  109. 

BICYCLES, 

among  the  marvellous  inventions,  122. 

their  place  in  modern  travel,  123,  124. 

their  treatment  in  law,  125. 

should  not  be  allowed  on  sidewalks,  126. 

use  in  public  parks  and  commons,  126. 

use  regulated  by  public  authority,  127. 

how  existing  statutes  interpreted,  128-136. 

the  law  relative  to  their  use  in  England  and  the  United  States, 
128-134. 

the  duties  of  wheelmen,  135,  136. 

different  kinds  of  cycles,  123. 
BOUNDARIES  of  highway  to  be  respected,  64. 
BRIDGE,  railings  required,  34. 


138  INDEX. 

CARELESSNESS.    (See  NEGLIGENCE.) 
CATTLE,  right  to  pasture  upon  highway,  65. 

(See  ANIMALS.) 

CHILDREN,  rights  of,  in  highway,  34,  113. 
CLEANLINESS  NEXT  TO  GODLINESS,  93. 
COLLISION  between  travellers  and  vehicles,  46,  47- 
COMMONS,  39,  120. 
CONSTRUCTION  OF  ROADS, 

Roman  method  of,  3. 

Chinese  method  of,  6. 

Mexican  and  Peruvian  method  of,  6,  7« 

suitable  drainage  the  first  requisite  of,  17. 

all  surface  water  must  be  disposed  of,  17. 

necessity  of  suitable  width,  17,  18,  34. 

the  road-bed  should  be  raised  and  crowned,  18. 

the  road-bed  should  invite  travel  at  all  points,  19. 

macadamized  roads  the  best  and  cheapest,  19. 

how  they  should  be  made,  19,  20. 

earth-roads,  and  how  they  should  be  made,  20,  21. 

proper  width  of  road,  17,  34. 
COUNTY  COMMISSIONERS, 

have  power  to  lay  out  or  alter  ways,  29. 

may  lay  out  in  town  or  from  town  to  town,  29. 

roads  located  by  them  are  public  highways,  29. 

they  constitute  appellate  tribunal,  30. 

their  decisions  final  on  questions  of  public  necessity  and  con- 
venience, 30. 

have  power  to  assess  damages,  30,  31. 

authority  to  regulate  cycle  travel,  127. 
CROSSWALKS,  121.    (See  SIDEWALKS.) 

DAMAGES, 

for  land  and  property  taken,  30,  31,  62. 

cities  and  towns  liable  for  bad  roads,  32,  34. 

master  liable  for  servant's  carelessness,  43. 

driver  liable,  if  team  not  in  road  worthy  condition,  42. 

(See  DRIVING.) 
for  fast  driving,  42,  43. 
for  vicious  and  ill-trained  horse,  42,  77. 


INfcEX.  139 

DAMAGES  (continued). 

for  refusing  to  yield  equal  share  of  road,  45,  47. 

for  animal  affected  by  contagious  disease,  74. 

for  driving  without  bells  in  sleighing  time,  75. 

for  poor  horsemanship,  76,  77. 

but  not  for  inevitable  accident,  44. 

additional,  when  new  servitude  established,  62,  63. 
DEDICATION, 

of  ways,  28,  70. 

how  made,  28,  29. 
DEFECTS,  what  are,  81, 114-116. 
DOG,  barking,  83. 

DON'T 

use  intoxicating  liquor,  73. 

fail  to  look  out  for  engine,  74. 

drive  diseased  animals,  74. 

drive  sleigh  without  bells,  75. 

learn  horsemanship  on  highway,  76. 

ride  with  careless  driver,  76. 

drive  a  runaway  horse,  76. 

let  horses  get  beyond  control,  77. 

encroach  upon  highway,  78. 

ride  on  platform  of  coach,  78. 

jump  off  coach  in  motion,  79. 

injure  milestones  or  guideposts,  79. 

go  outside  of  highway,  80. 

fail  to  give  notice,  81. 

suppose  that  every  accident  is  caused  by  a  defect,  80,  81. 

convey  except  subject  to  ways,  82. 

keep  barking  dog,  82,  83. 
DRAINAGE, 

importance  and  necessity  of,  17. 

proper  method  of,  17. 

surface  drainage  of  road  may  be  turned  upon  adjoining  land, 
32,  68. 

adjoining  owner  may  drain  upon  road,  68. 
DRINKING  TROUGHS, 

who  may  establish  and  maintain,  37- 

they  ought  to  be  at  suitable  places,  38. 


140  INDEX. 

DRIVING, 

what  is  careless  driving,  42,  43,  77. 
horses  and  carriages  must  be  roadworthy,  42,  77. 
when  bells  required,  75. 
DRUNKENNESS,  73. 

EMINENT  DOMAIN,  62,  63. 

(See  USE  OF  HIGHWAYS.) 
ENJOYMENT  OF  THE  ROAD,  95. 

how  to  enjoy  road  travel,  96. 

what  may  be  enjoyed  on  the  way,  99-103. 

FARMER, 

as  a  landscape  gardener,  91. 
as  a  forester,  91. 
his  ideal  home,  101. 
FEE  IN  HIGHWAYS, 

vests  in  owner  of  adjoining  land,  62. 

entitled  to  the  use  of  land  for  all  purposes  not  incompatible 

with  public  enjoyment,  62. 
reversion  of  fee,  after  abandonment,  62. 
the  rights  of  the  owner  as  to  drains,  64. 

as  to  pasturage,  64-66. 
as  to  the  crops,  64,  65. 
as  to  trespass,  64. 
as  to  loafers,  65. 
FENCE, 

not  required  by  road,  64. 

barbed  wire  not  allowed  on  road  having  sidewalk,  106. 
FOOT-PATHS,  84.     (See  SIDEWALKS.) 
as  promoters  of  health,  84-87. 
as  avenues  to  Nature,  87. 
as  one  of  the  charms  of  old  England,  87. 
towns  and  cities  have  authority  to  lay  out,  88. 
should  be  alongside  the  road-bed,  88. 
across  public  commons,  not  laid  out  by  public  authority,  no 

part  of  way,  120. 
legal  foot-paths  outside  of  highway  must  be  kept  in  repair,  120, 

121. 
FOUNTAINS,  37. 


INDEX  141 

GRADE,  importance  of  good,  15,  16. 
GRASS,  wayside,  99. 
GUIDEPOSTS, 

law  as  to  erection  and  maintenance,  36. 

penalty  for  neglect  to  erect  same,  37. 

HIGHWAY.     (See  ROADS  and  ROADSIDE.) 
HOME, 

neatness  and  intelligence  of,  90-93. 

how  to  be  situated,  91. 

rural  and  typical,  101. 
HORSE,  vicious,  76,  77. 
HORSE-CARS,  54. 

entitled  to  right  of  way,  49. 

ICE  AND  SNOW, 

on  roads  and  sidewalks,  80,  81,  107,  114. 
falling  off  roofs,  109. 

LAW  OF  THE  ROAD, 

the  necessity  of,  45. 

as  to  meeting,  45. 

as  to  passing,  45. 

not  inflexible,  46. 

effect  of  deviation  from,  46. 

the  non-observance  of,  does  not  excuse  the  negligence  of  others, 

46. 

as  to  meeting  on  the  sudden,  47. 
when  road  unoccupied,  either  side  may  be  taken,  47. 
does  not  allow  leading  traveller  to  obstruct,  47. 
as  to  meeting  at  junction  of  two  streets,  47. 
as  to  the  travelled  part  of  road,  48. 
as  to  light  and  heavy  teams,  48. 
as  to  street-railways,  49. 
as  applied  to  pedestrians,  51,  52. 

to  equestrians,  55. 

to  rate  of  speed,  42,  43. 

to  road- worthiness  of  vehicle,  42. 

to  wheelmen,  135. 
LIGHTING  of  streets  not  required  by  law,  115. 


142  .  INDEX. 

LOCATION  OF  ROADS, 

importance  of  good  location,  12,  13. 
the  relative  value  of  straight  and  curved,  14,  15. 
mere  straightness  should  yield  to  good  grade,  16. 
roads  should  follow  the  natural  streams,  16. 

MOUNTAINS,  their  beauty  and  value,  102. 

NATURE, 

importance  of  an  acquaintance  with,  85,  86. 

her  teachings  necessary  for  the  expansion  of  the  mind,  86. 

the  love  of,  a  blessing,  97. 
NEGLIGENCE  OF  PARTY, 

on  icy  walks,  114. 

in  walking,  51,  52. 

in  driving,  42,  46,  47,  77,  112. 

in  going  out  of  road,  80. 

in  riding,  50,  51,  77,  78. 

party  in  fault  liable,  46. 

of  servants,  43. 

party,  as  affected  by  driver's  negligence,  76. 

of  stage-coach  proprietors,  54-56. 

in  driving  animals  in  road,  59. 
NOTICE  required  in  case  of  accident,  81,  82,  117. 

OMNIBUSES,  54. 
ORNAMENTAL  GROUNDS,  40. 

PARKS,  39. 

PASSENGERS,  in  omnibuses,  stages,  and  horse-cars,  54-56. 
PEDESTRIANS, 

may  walk  on  road,  51. 

had  better  walk  on  sidewalk,  51,  105. 

must  look  out  at  crossings,  52. 

may  travel  on  the  Lord's  day,  53. 

PRIVATE  WAYS, 

how  established  and  discontinued,  70. 

as  ways  of  necessity,  70. 

by  whom  to  be  kept  in  repair,  71. 


INDEX.  143 

PRIVATE  WAYS  (continued}. 

the  law  of  the  road  applies  to,  72. 

rights  of  the  owner  of  the  way  and  of  the  fee,  71,  72. 
PUBLIC  SPIRIT,  necessary  and  beneficial,  89,  90. 

RAILINGS  to  be  kept  up,  34. 
RAILWAYS, 

street,  49. 

engine,  74. 
REPAIRS, 

should  be  continual,  22. 

clay  and  sand  pits  may  be  taken  for,  32. 

surface  water  may  be  drained  upon  adjoining  land,  32. 

obstructions  may  be  removed,  33. 

trees  may  be  cut  down  or  trimmed,  33. 

soil  may  be  dug  up  and  carried  away,  33,  34. 

railings  to  be  kept  up,  34. 

when  whole  width  of  road  should  be  repaired,  119. 
ROADS, 

a  means  of  civilization,  1,  9-11. 

Macaulay,  Bushnell,  and  Carlyle  on,  1,  2. 

ancient  road  from  Babylon  to  Memphis,  2,  12. 

Roman  roads,  their  rise  and  decay,  3-5,  13,  14. 

Carthaginian  roads,  2,  3. 

Chinese  roads,  6. 

ancient  roads  of  Mexico  and  Peru,  6-8. 

roads  of  the  Middle  Ages  and  after,  5,  8,  9. 

location  of,  2,  12-16. 

importance  of  good  location,  13. 

two  ways  of  location,  straight  and  curved,  14,  15. 

importance  of  good  grade,  16. 

public  have  right  to  use  whole  width,  120. 

construction  of,  3,  6,  17-21. 

new  roads,  28,  30. 

supervision  of,  5,  23,  24. 

enjoyment  of,  96-104. 

repairs  of,  22-27,  32. 

laying  out  of,  28-31. 

the  law  of,  45-49. 

use  of,  by  adjoining  owners,  62-69. 


144  INDEX. 

ROADS  (continued). 

public  use  of,  42-44. 

purposes  for  which  used,  5,  7-61. 
ROADSIDE, 

how  to  be  kept,  94. 

trees  by,  100. 

flowers  by,  98. 

grass  by,  99. 

SERVANTS,  masters  liable  for  acts  of,  43. 
SHADE-TREES, 

appropriations  for,  39. 

where  to  be  planted,  39. 

penalty  for  injury  to,  40. 

improvement  societies  may  plant  and  care  for,  39,  40. 

by  roadside,  93,  100. 

enjoyment  of  planting,  90,  92. 

on  the  farm,  93. 
SIDEWALKS.    (See  CROSSWALKS  and  FOOT-PATHS.) 

part  of  highway,  but  distinct,  105. 

may  be  used  by  footmen,  105. 

by  adjoining  owners,  110. 
by  travellers,  110,  112,  113. 
not  by  wheelmen,  126. 
not  by  gymnasts,  112. 

what  pedestrians  may  take  along  with  them,  116. 

should  be  alongside  the  highway,  88,  106. 

should  not  be  fenced  with  barbed  wire,  106. 

may  be  constructed  by  adjoining  owners,  106. 

may  be  constructed  by  public  authority,  117. 

not  to  be  obstructed,  106,  107,  118. 

must  be  kept  safe  and  convenient,  107,  108,  118. 

adjoining  owners  not  liable  for  defects  not  caused  by  them, 
107,  109. 

cities  and  towns  liable  for  defects  and  obstructions,  108, 109,  111. 

individual  and  corporate  liability  necessary,  111,  112. 

what  are  defects,  114-116. 

snow  and  ice  to  be  removed,  107,  114. 

use  regulated  by  public  authority,  116,  117. 

notice  required  in  case  of  accident,  117. 


INDEX.  145 

SIDEWALKS  (continue^. 

when  safe  and  convenient,  117. 

when  assessments  may  be  made  for  construction,  117,  118. 

assessment  a  lien  on  estate,  119. 

assessment  of  one  half  expense  not  unconstitutional,  118. 

how  assessment  should  be  made,  119. 
SNOW.     (See  ICE  AND  SNOW.) 
STAGE-COACHES,  54. 
SUNSHINE,  the  value  of,  96, 103. 

TREES,  39.     (See  SHADE-TREES.) 
TRICYCLES,  122.    (See  BICYCLES.) 

USE  OF  HIGHWAYS, 
by  the  public,  42. 
by  adjoining  owners,  62. 
purposes  for  which  they  may  be  used,  57-59. 
traveller  must  use  due  care,  42. 
must  drive  at  moderate  speed,  42. 
masters  liable  for  servants'  negligence,  43. 
towns  and  cities  have  authority  to  make  by-laws,  60,  127. 
how  the  use  of  road  may  be  enjoyed,  95. 
public  spirit  as  to,  89. 

VEHICLE,  kind  allowed  in  highway,  59,  116. 
VELOCIPEDES,  59,  116. 

WAYS,  70-72.    (See  PRIVATE  WAYS.) 
WELLS,  37. 


10 


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